Low Speed E-Bikes Given Bicycle Privileges

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP

 

On Oct. 7, 2015, Governor Jerry Brown signed Assembly Bill 1096 that gives two of the three classes of electric bikes the right to access bike paths and bike lanes. This is the first of its kind of legislation in the country, and it is a sign that e-bikes are coming of age.

AB 1096, which goes into effect Jan. 1, 2016, divides electric bikes into three classes:

  • Type 1: Pedal-assisted machines with a maximum assisted speed of 20 mph
  • Type 2: Throttle-assisted machines with a maximum assisted speed of 20 mph;
  • Type 3: Pedal-assisted bikes with a maximum assisted speed of 28 mph.

As of 2017, electric bike manufacturers must label e-bikes as a Type 1, 2, or 3. The infographic below by People for Bikes and the California Bicycle Coalition explains the policy more completely.

e-bike-graphic-trimmed

E-bikes are gaining in popularity, and not just with seniors, people with injuries or disabilities, families, and those who have particularly long or uphill commutes. These bikes are quickly going mainstream because they’re fun to ride and adaptable to various conditions.

Though AB 1096 permits various classes of e-bikes to ride in or on various bike paths and lanes (as indicated on the chart above), be aware of where e-bikes still may not be permitted to ride, unless specifically indicated in these areas:

  • Bike paths and roads that are not under federal or state vehicle codes (an example would be a bike path in a county park).
  • Natural surface paths in parks, like mountain bike trails, and open space areas.

Most importantly, counties, cities and other government entities still have the right to regulate e-bikes, just as they have the right to regulate bicycle usage with their domains.

Since we’re discussing e-bikes’ rights and responsibilities under the law, let’s go a little further. In 2001, the United States Congress passed Public Law 107-319. It stated that electric bicycles and tricycles that meet the definition of low-speed electric bicycles are regulated by the federal Consumer Product Safety Act versus mopeds and motorcycles that have the ability to exceed the speed of an electric bicycle. The latter are regulated by the Department of Transportation and the National Highway Traffic Safety Administration.

States then passed their own laws regulating e-bikes. In California, low-speed (up to 20 mph) e-bikes have all the rights and responsibilities of a motor vehicle, just as a bicycle does. E-bike riders do not need a driver’s license, license plate or insurance. You must be at least 16 years old to ride an e-bike, and if you are age 17 or younger, you must wear a bicycle helmet.

Now with AB 1096, you can ride an e-bike almost anywhere you can ride a bicycle. But remember, all the traffic laws – from stop signs to traffic signals and to phone and text use and from riding with traffic and having working brakes, handlebars, and lights on your bike – all apply to you on your e-bike.

There are a couple of potential legal issues that I see facing e-bike riders. The most important one in my mind is the issue of insurance. As I said, no insurance is required for an e-bike in California.

I have read online that dealers believe that if your e-bike is stolen, it is likely that your homeowner’s or rental insurance policy would cover the theft. They do suggest that you contact your insurance agent to confirm that.

My apprehension is whether your uninsured motorist insurance would cover you if you are in a collision and the driver of the motor vehicle is either uninsured or doesn’t have enough insurance to cover you if the collision results in serious injuries or a wrongful death. A cyclist riding a bicycle who has a collision is covered by his/her uninsured motorist insurance. Is a cyclist on an e-bike similarly covered?

This is a very important point, and it’s why we always recommend that a cyclist increase his/her uninsured motorist insurance as high as their insurance company will permit. It’s pennies on the dollar and if you’re in a collision, it could mean that you have a much easier time of restarting your life.

Your uninsured motorist insurance kicks in if the driver does not have insurance, if the driver does not have enough insurance to cover the damage he/she caused, or in the event of a hit and run when the driver is not found.

Does your uninsured motorist insurance cover you on an e-bike? I urge you to contact your insurance agency and ask. If they say “yes,” get it in writing!

It is also worth noting that regardless of what type of bike you are riding, it is illegal to ride under the influence of drugs and/or alcohol. Besides the obvious, I see a potential legal issue here also.

In 1985, California passed Vehicle Code 21200.5, which made cycling (or bicycling) under the influence a CUI rather than a DUI. A CUI is a misdemeanor and it will show up on your record as a conviction. It also carries a $250 fine but no jail time. If the individual is under 21, a CUI conviction can result in the suspension of the person’s driver’s license.

In my mind it is unclear whether riding a Type 1 or a Type 2 e-bike under the influence of drugs and/or alcohol would be categorized as a CUI or a DUI if you were stopped by law enforcement.

Cal. Veh. Code § 231, specifically defines a bicycle as a device upon which any person may ride, propelled exclusively by human power through a belt, chain, or gears, and having one of more wheels. It says that persons riding bicycles are subject to the provisions of this code (CUI) specified in Sections 21200 and 21200.5.

A moped rider who is under the influence is subject to the drunk driving laws (DUIs). This was decided in 1977 by the California Court of Appeal in People v. Jordan, 75 Cal. App.3d Supp.1. The court specifically stated that because it had a motor it did not fall under the CUI law.

There doesn’t seem to be any law on the books at this time that would remove Type 1 or Type 2 e-bikes from DUI law. My best advice would be to not test the law and to not ride under the influence of alcohol and/or drugs (illegal OR prescription drugs).

So the next time you see an e-bike in a bike lane, remember, it, too, has the right to be there.

 

Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

For more than 25 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com.

 

 

Juries, Judges and Your Bike Crash

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 

Jury box

This may well be the most controversial blog post I’ll ever write. It’s likely that many of you are going to hate reading this. Some of you will tell me that what I say here isn’t fair and that I’m blaming the victim.

Be assured, I’ve represented many bicycle riders in bike crashes and I know as well or better than anyone how the system is stacked against them. As to fairness, well, it isn’t fair that I don’t have the same head of hair that I had as a younger man either, but that’s the way it is.

What I’m going to tell you is the hard truth. It’s not fair, but it IS an undeniable, regrettable fact: many people have strong, negative feelings about cyclists. If you are in a bike crash and it goes to trial, the judge and/or jurors will probably not be cyclists.

Though the people on your jury and the judge presiding over your trial have probably encountered hundreds – if not thousands – of law-abiding bicyclists, those aren’t who they remember. They remember the helmetless cyclist who cut them off or rode through a red light and saluted them with a middle finger as they blew by. It’s always that “one” ne’er-do-well who people remember.

The U.S. Bicycling Participation Benchmark Report, commissioned by People for Bikes, reported that though the number of Americans ages 3+ who rode a bicycle last year is larger than had been previously thought, 30% of these cyclists rode 5 days or fewer in 2014.

The chance of getting a cyclist on your jury or a judge is probably even worse when you add the number of seniors who willingly sit on juries. (Think of that the next time you attempt to get out of jury duty or complain about being called for jury duty.)

The result is that the judge and jurors, more than likely, are going to be people who are biased against cyclists. When I am questioning potential jurors in a bicycle case, some of the most common comments I get from people are:

  • Bike riders ride recklessly, not stopping at red lights or stop signs.
  • Bike riders should ride on the sidewalk and stay out of traffic.
  • Bike riders ride too fast on the sidewalk.
  • Bike riders ride in car lanes, sometimes side-by-side or as a group, which interferes with traffic.
  • Roads are for cars, not bikes.

You know all this. If these things have never been said to your face, you’ve read them in comments on articles and posts on social media.

These are the people who are going to decide your legal case. Their inclination is going to be to blame YOU – the cyclist – for your own “accident.” Furthermore, insurance adjustors and defense attorneys know this, and they are going to cater to this bias.

It would be nice if more people understood the rules of the road. “Fair” doesn’t enter into the equation. In a trial, we have to deal with the hand we’ve been dealt, and in most bike crash trials, it’s contending with the prejudice against our cyclist client.

To be successful in trial it is critical for your trial lawyer to understand how people perceive you. As a trial lawyer, I have numerous strategies I utilize to attempt either to overcome this bias or to focus the jurors on the person the cyclist is, not his/her activity. I want the juror to see the cyclist as a person who has more in common with the jurors than s/he has different. An experienced trial lawyer utilizes specific strategies in every part of the trial, from jury selection at the beginning of the trial to how jury instructions are crafted near the end of the trial, and everything in-between.

I believe we can change these preconceptions, but it isn’t easy, and it isn’t going to happen tomorrow, next month, or even next year.

As a cyclist – whether you ride for recreation or as a commuter – you can be part of the solution. Here are some suggestions:

  1. Join the Los Angeles County Bicycle Coalition and your local bicycle advocacy organization. Even better, get involved. These people are on the frontline of change. At the very least, sign up for the LACBC’s e-newsletter (no membership required) and join these advocacy organizations’ Facebook pages. (And in a shameful plug, “friend” the FB Pocrass & De Los Reyes Bicycle Law page, too.)
  1. I suggested above that you join your local advocacy organization. Many of these are chapters of LACBC, all of them work together. Almost all cities have such organizations, including Claremont, Pomona, the Eastside, Santa Monica, Beverly Hills, Santa Clarita, and many more.
  1. Join the California Bicycle Coalition, our state-wide organization that is instrumental in lobbying for biking conditions and laws for California cyclists.
  1. Get involved with SAFE (Streets are for Everyone). The nonprofit advocates for changes in the law to make streets safe for bicyclists, motorcyclists, pedestrians, skateboarders, and everyone else.
  1. Know and follow the Rules of the Road. The LACBC has a wonderful wallet-sized brochure that explains what these are. They are available at every event attended by the LACBC. The organization also is offering FREE bicycle safety classes through the end of September throughout the Southland. Don’t be that one cyclist who will be burned into the brain of those who come in contact with him/her for his/her bad behavior.
  1. Cyclists over the age of 18 are not required by law to wear a helmet when they ride. We strongly urge you to wear one, regardless of your age. The obvious reason for wearing a helmet is that it very likely increases your chances of surviving or limiting brain injury should you crash. A less obvious reason is that not wearing one adds to the jurors’ and judge’s biases that you SHOULD HAVE BEEN wearing a helmet and if you had been wearing one, it would have protected you so your injuries “are your own fault.” (Don’t kill the messenger, please. I said I was going to talk reality here.)
  1. Think before you post on social media. Specifically, insurance companies and defense attorneys troll your social media accounts to see what can be used against you. What you write on social media will come back if you’re ever a plaintiff in a jury trial. Generally, furious posts filled with expletives (I understand the urge, believe me), reinforce non-cyclists’ attitudes about the “arrogance” of cyclists.
  1. Educate the non-cyclists you know. Back up your arguments with facts and statistics. Try to be calm and rational in the discussion, but the one-on-one discussions are the best way to change perceptions. Remember, no one goes out to kill someone with their car (okay, almost no one), but most drivers are angry because they’re scared. No one taught them how to share the road. No one taught them how to drive sharing the road with a cyclist. You can say that’s not your problem, but the truth is, it’s everybody’s problem.

Often when I read bikinginla.com and see the slap on the wrist so many drivers get for hitting cyclists, I am frustrated by the slowness of the process to eliminate cyclist bias. But it’s coming, and by working together, I believe we can make it happen.


 

Jim Pocrass Trimmed

Jim Pocrass, Pocrass & De Los Reyes LLP

For more than 30 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com or visit www.pocrass.com.

 

 

Why Attorneys Tell You To Never Admit Guilt

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 

Pocrass Photo 6-15

Immediately after any type of motor vehicle “accident” (bicycle, pedestrian, motorcycle, car), most people have two reactions: 1.) to blame the other person or 2.) to say “I’m sorry; it was my fault.” As a personal injury lawyer, I counsel people to NEVER admit guilt after a crash of any type. Whether you are or are not liable, I guarantee such a statement will come back to bite you in ways you never expected.

The most important reason for not admitting guilt, which is, in legal terms, admitting liability, is because you probably don’t really know the cause of the collision.

Example: We recently had a client who was in a Santa Monica bicycle collision. He came up to a four-way stop and rolled slowly through it, getting halfway through intersection. Meanwhile, an 80-something-year-old woman drove up to the intersection, stopped, and went, hitting our client in the intersection.

During the deposition, the woman insisted that she never saw anyone or anything in the intersection. (I admit, I laughed inside at the insurance company lawyer’s expression.) The insurance company settled for a five-figure settlement.

This was an unusual situation, but the point is, you really don’t know exactly what the complete cause of your bike collision is, and, therefore, who is liable. Yes, you might be partially liable if you do not follow the rules of the road, but there may be extenuating circumstances that contributed to the collision. These could be:

  • Road Design: the road or signage was not designed well, maintained, in disrepair, or missing.
  • Product Liability: your bike or the other vehicle could have defective parts or been repaired, maintained, or manufactured incorrectly.
  • Other Driver: also might not be following the rules of the road.

If any of these conditions exist, your case — even if you are partially liable for the collision — could allow me as your bike lawyer to argue for comparative liability.

California recognizes comparative liability, which states that each party might hold some responsibility for the collision. If your case were to go to trial, the judge or jury decides IF each party is liable for the collision and, if so, what percentage of liability each party is responsible for.

Consider this hypothetical situation: You are riding your bike at night. You have no lights on your bike. As you ride past a parked car, the driver opens his door and you are “doored.” You suffer serious personal injuries and your bike is trashed. The case goes to a jury trial.

The jury decides that because you were riding at night without lights — clearly against the law — you are partially liable for the collision. They may determine that you are 10% responsible and the driver is 90% liable. In that situation, if they awarded you a $100,000 verdict, you would receive $90,000 from the driver’s insurance company rather than the full $100,000.

Once you have admitted guilt at the scene (or in follow up conversations with the other driver’s insurance company), it becomes more difficult for your attorney to argue comparative negligence. It also means that it is more likely that the insurance company will either refuse to settle or low-ball its offer.

Trials are always more expensive in cost and in time than settlements, so if a fair settlement is possible, that is the more desirable route. (Of course you wouldn’t say THAT to an insurance company either because if it thinks you’re not prepared to go to trial you’re back to them either refusing to settle or low-balling their offer. It’s all a chess game with serious consequences for you.)

I have a friend who is a criminal attorney. He once told me the most difficult part of his job is trying to undo what his clients have told the police. As a civil attorney, I understand. It is very difficult to “unring a bell.” So, please, don’t admit liability or guilt. Let us sort that out later.

 

Jim Pocrass TrimmedFor more than 30 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com, or visit www.pocrass.com.

 

 

The Danger in Dog Day Afternoons

Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 
 

Recently, at the Los Angeles County Bicycle Coalition Open House, JJ Hoffman was telling me a story about her daily encounter with dog a couple of years ago. JJ said every day when she was riding to work she’d meet up with this same woman who was walking her dog unleashed.

Every day the dog took after JJ, which set the woman off who would run yelling behind her dog. It got so bad that JJ had the pepper spray out before she got to the street where she’d meet up with the dog. All that dog wanted, JJ said, was a taste of her calf.

JJ really didn’t want to spray the dog, though spraying the owner was tempting, and, luckily for everybody, JJ never actually had to take action.

Like JJ, I really like dogs. The dogs are doing what their instincts tell them to do: to chase prey. Irresponsible dog owners are another matter. They put the cyclist, the dog, and especially themselves in danger.

Bitten by a Dog

In California, if you are bitten by a dog, the owner is at fault. It doesn’t matter if the dog is leashed or not. It doesn’t matter if the owner knew or didn’t know that the dog had a “vicious nature.” California holds owners to “strict liability.” If you are bitten, the owner is liable for your injuries. There is no “free bite” in California.

Collision with or because of a Dog

When a dog begins chasing a cyclist, most cyclists tend to try to outrun the dog. When that happens, the dog’s brain goes into get-the-fleeing-prey mode, and the race is on.

Whether or not you can really outrun the dog, the real danger is in possibly colliding with the dog or colliding with something else because you lose control of the bike or you hit a pot hole or even getting hit by a motor vehicle when swerving or not being able to stop at a light or an intersection.

If you suffer serious personal injuries or your bike is damaged, again, the dog owner can be held liable. Your bicycle accident attorney should be able to obtain compensation for your injuries.

Compensation for Dog-related Collisions or Bites

The dog owner may be held negligent for:

  • Ineffective control of the dog.
  • Violation of the leash law and other Animal Control Ordinances.
  • Inadequate supervision or management of the dog.
  • Putting the dog in a condition in which the owner could have seen that the dog could cause injury to somebody.

Individual cities also may have their own animal control ordinances. For instance, one city limits the number of dogs that can be walked by one person at a time and a number of cities consider it a misdemeanor if a dog is tied to a parking meter, sign or bus bench without food or water nearby.

Some cities have ordinances specific to a breed. In Santa Monica a pit bull on public property must be muzzled.

The dog owner may be held responsible for compensating you for:

  • Medical bills from doctors, emergency rooms, hospitals, therapists, plastic surgeons, and for prescriptions.
  • Future medical bills to remove scars or to repair disfigurements. If the money for medical care is not recovered at this time, your health insurance might not cover any future medical procedures you need later, calling them “cosmetic.”
  • Time you had to take off from work resulting in lost income.
  • Lost future earnings because of disfigurement or disabilities.
  • Emotional counseling.
  • Pain and suffering.

Of course you can only recover compensation for injuries you suffer and care you actually need.

Hesitations to Holding an Owner Liable

One of the major hesitations a cyclist who is bitten by a dog often has in reporting a dog bite is the fear that the dog will be destroyed. A dog that has no history of biting is rarely “put down.”

The court takes into account the severity of the bite and the number of times it has bitten. It may rule that a dog must be muzzled in public or restrained in a particular way, such as kept behind a certain type of fence of a certain height.

Self-Defense

We all have heard that we have the right to defend ourselves against an attack from another person. What few people realize is that the law says you can defend yourself as much as is necessary to foil the attack. Your defense must be proportionate to the attack, and when the danger is past, so is your right to defend yourself.

This is a common law concept, and there is no explicit statement in common law that this also applies in a dog attack. More and more dog owners are counter-suing for compensation when their dog has been injured either intentionally or through someone else’s negligence.

So if you are going to use self defense, be sure that it is proportionate to the attack and that once the attack is over you stop, similar to how you would defend yourself with a human. That is a legally defensible act, though you could still find yourself in a lawsuit with the dog owner.

Personally, I subscribe to the belief that it’s rare to find a bad dog, but bad owners are much too plentiful.

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Insurance Companies Are Not Your Friend

 

Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 
 

Behind the warm and fuzzy jingles, the precocious animal mascots, and the deep-voiced spokespersons, insurance companies are faceless, heartless corporations whose one purpose is to increase premiums and to decrease payouts in order to make the biggest profits possible.

Simply put, THAT is why you need your own lawyer if you have a bike accident.

If insurance companies were “fair,” I’d be out of a job. I am pretty confident that unemployment due to insurance companies deciding to do the “right thing” is not something I have to worry about in my lifetime.

The reality is, after you have had a bike accident and the friendly insurance adjuster calls you, his (or her), goal is to come up with a reason not to pay you. If he can’t outright deny you compensation for your damages, he wants to diminish your case so the company has to pay you as little as possible.

Rest assured, everything you say to that nice insurance adjustor can and will be used against you in a court of law. That is why I – and every other personal injury lawyer – will tell you to refuse to speak to an insurance adjuster or insurance representative. Give the adjustor your lawyer’s name and phone number and hang up.

If you cooperate with the insurance adjuster and you are offered a settlement, it is likely that you are getting 10 cents on the dollar of the value of your case. I was once told by an adjuster that he received a bonus if he could settle a case within 48-hours.

Let me tell you about a case I handled. A client who had a Los Angeles bike accident injured his shoulder. He talked with the kindly insurance adjuster who sympathized and sent him to a doctor (an insurance company sending you to a doctor is a rare occurrence).

SURPRISE! The doctor recommended by the insurance company said my client’s shoulder was fine. The company offered my client $5,000 to settle his case.

My client’s shoulder really hurt. He finally engaged a lawyer (me), and I sent him to a doctor. The doctor I sent him to diagnosed a torn rotator cuff. He underwent surgery. We settled the case for $150,000.

Never forget that insurance companies have more knowledge than you do. They also employ an army of lawyers. They can throw more resources at your case than you even know exist. They have all the power, all the money, and the wherewithal to fight you when you are fighting alone.

You need an experienced personal injury lawyer to level the playing field. I have written here before about how to choose a lawyer, but it bears repeating to say you should look at how or where you got the referral, the lawyer’s experience in your type of case, and the results the lawyer has achieved.

Now go increase your uninsured motorist insurance to the maximum the insurance company will permit, and the next time you see an insurance company commercial, remember, they are not your friend.

*California Vehicle Code 21200: A person riding a bicycle or operating a pedicab upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle. . .

For more than 25 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com.

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