Using a “request for admissions” in a bicycle car dooring personal injury case
Being doored by a car on your bicycle is a frequent cause of injury for commuter riders. And it has long been illegal in Oregon to open a car door into the path of travel of a bicycle rider. Causing personal injury to a bicyclist by car dooring is a “clear legal liability” scenario but it is problematic because many drivers (and insurance claims adjusters) do not follow or accept the law.
The law is clear:
ORS 811.490 Improper opening or leaving open of vehicle door provides:
(1) A person commits the offense of improper opening or leaving open a vehicle door if the person does any of the following:
(a) Opens any door of a vehicle unless and until it is reasonably safe to do so and it can be done without interference with the movement of traffic, or with pedestrians and bicycles on sidewalks or shoulders.
(b) Leaves a door open on the side of a vehicle available to traffic, or to pedestrians or bicycles on sidewalks or shoulders for a period of time longer than necessary to load or unload passengers.
Sounds clear doesn’t it? A driver cannot open the car door if it is going to interfere with a passing bicyclist or pedestrian. But claims adjusters, and sometimes jurors, can get confused by the difference between the minimum safe legal standard in the statute and the safe or recommended riding practice that safety advocates urge upon bicycle riders. While it is correct that every person should take reasonable steps to ride or drive defensively, including “defensive driving” or “riding” so as to be aware that some people do not follow the law, it is a clear violation of the Oregon Vehicle Code to open a car door in front of an overtaking bicycle rider.
The law is also clear that “Every person has a right to assume that others will obey the law, unless and until that person knows or in the exercise of reasonable care should know otherwise.” Oregon Uniform Civil Jury Instruction 20.05. If everyone has to ride or drive as if everyone else is going to car door them, run a red light, or fail to stop and yield at a stop sign, then traffic would be reduced to a slow crawl and no one would ever be able to commute to work on time. If it is said a bicyclist was “heedless” by failing to anticipate that a driver would swing their door open in front of the bicyclist then under the law how is it any different than complaining that a motorist is at fault for failing to anticipate that another driver is going to run a stop sign in front of them? But this is upside down thinking because if the driver had not opened the car door into the rider’s path in the first place then the collision would never have occurred.
So while telling people to “be careful”, “watch for opening car doors”, “ride predictably” are all nice sounding platitudes, few people would suggest we should not “be careful”, “watchful” or “predictable” in our riding behavior. On the other hand trying to blame the bicyclist for somehow failing to anticipate that someone is going to swing their door open in front of the bicycle is like blaming a car driver who drives into an intersection with a green light for failing to anticipate that another driver is suddenly going to turn unlawfully left in front of them.
One way to educate about the law, is to use a Request For Admissions. If a lawsuit has to be pursued, the Request for Admissions, ORCP 45, allows the rider to provide the driver’s lawyer with a set of statements to admit. While some ways to state the facts about a car dooring may be quibbled with as “argumentative” and therefor denied, if done right a collection of non-argumentative statements can be formulated that are hard to disagree with. And the benefit of forcing the driver’s insurance company to admit or deny the statements carries some consequences. If the other side denies the statements, the case goes to trial and the plaintiff then proves the statement to be correct and well founded in the law and facts, then the law provides an opportunity to convince the judge that the driver’s lawyer should have admitted them in the first place.
If it is shown there was no need at trial to waste time and money to prove what should have been admitted, then the bicyclist’s lawyer can ask that all “reasonable expenses” and attorney fees incurred in making the proof be added to what the driver has to pay in damages in the case. In other words, the costs AND attorney fees incurred by the bicycle rider for the driver’s failure to admit are added as a penalty to the damages in
Examples of using of the wording of the statute in a car dooring case Request For Admissions:
Note that some of the “RFAs” are generic but others refer to “plaintiff” and “defendant”. Using the generic references is intended to make a more general statement that is harder to disagree with. Of course the intent is to make such a thorough collection of reasonable propositions based upon the law that the driver’s attorney has no choice to admit some of them, and thereby streamline the bicyclist’s proof at trial. And the driver’s attorney fails to admit the statements at their peril. If the case goes to trial and the plaintiff makes a convincing set of proof of any of the denied Requests For Admission then the costs and attorney fees incurred to prove a single statement can total several thousand dollars. And if in the course of making the driver’s attorney go through the process they learn about what the law requires it may well cause a re-evaluation of a negative liability determination by a claims adjuster and a reasonable offer of damages may be offered to the bicycle rider.