I was commuting to work on the Chester Creek bike trail last week when a guy on a sharp looking red bike passed going the other way. Now passing other cyclists is nothing out of the ordinary. But this guy was riding a fixed gear bike, just as I was. We recognized our common bond at the last possible moment, exchanging sidelong glances.
Fixies are all over the West Coast and the urban fixed gear trend is nothing new. Yet in Anchorage — out here on the far reaches of the Empire beyond even the Dagobah System — you just don’t see that many fixies. I’d guess that maybe you could find a few dozen or so if you scoured through all the alleys of Spenard and looked behind the dumpsters in the U-Med District. (I’m not including the singlespeed jobs that aren’t fixed.)
Yes, I know fixed gear bikes involve a learning curve for handling the inertia challenge. You have to actually think while riding a fixed gear, planning ahead for the next intersection or hill or obstacle. You have to remember there ain’t no coasting on a fixie and stopping one that is up to speed requires at least a modicum of skill. Most of the uninitiated, I suppose, view fixies as dangerous and utterly lacking in social utility, like the lawn darts of the cycling world.
So I got to wondering: How would the law treat a fixed gear cyclist? What will happen in the legal arena when one of our brave little band of Anchorage fixie riders gets wrapped around the hood ornament of some knucklehead who is turning right on red while looking left and talking on a cell phone?
There is not much precedent out there addressing the legal aspects of fixed gear riding. I searched WestlawNext for “fixie” and “fixed gear bike.” I came up with no court cases at all using those words in the cycling sense. I found one report of an arbitration case in Portland, Oregon that involved a fixed gear cyclist who was struck by a car turning left. The cyclist lost the arbitration since he was riding at dusk without a light. He also made some damaging admissions about the accident on his blog and in a Craigslist posting. (A good illustration of the Internet as litigation tool.) The arbitration report nevertheless gratuitously noted that the plaintiff was operating a bicycle “with no coaster brake or hand operated brake.”
I figure our injured Anchorage hero is going to end up in the realm of ordinary negligence cases with allocation of fault rules being applied. I suppose the over-caffeinated insurance defense lawyer for the knucklehead driver could try to argue assumption of the risk — that riding fixed is so depraved as to be a deemed to be the equivalent of voluntary consent to getting run over. But Alaska long ago rejected the tort principles behind implied assumption of the risk, along with all the other fine distinctions tied into the old common law doctrine of contributory negligence. (Last call for last clear chance!) And, Alaska’s more recent embrace of pure several liability and allocation of fault should eliminate whatever vestiges of non-contractual assumption of risk might remain.
More promising from a defense standpoint would be negligence per se. Negligence per se is based on a violation of a standard of conduct established by statute. Under negligence per se, the person who violates the statute is presumed to have acted negligently. So if the cynical, hard-bitten defense lawyer in our case can find some statute that the injured fixie aficionado violated, then the lawyer might be able to get the Honorable Judge Learned Blackbottom to tell the jury: “You must find the plaintiff was negligent and allocate some percentage of fault to him if you find his negligence caused his injuries.”
And there is at least one piece of legislation that could apply. Section 9.38.100(B) of the Anchorage Municipal Code says:
Every bicycle shall be equipped with a brake which will enable its driver to stop the bicycle within 20 feet from a speed of ten mph on dry, level, clean pavement.
(Contrast this with the more enlightened provision of the D.C. Municipal Regulations that carves out a specific exception for fixed gear bicycles. In D.C., fixies are not required to have a brake so long as the operator “shall be able to stop the bicycle using the pedals.”)
So, if our injured hero is a purist and rides fixed without any brakes, then the defense might have a shot at a negligence per se instruction. Even so, the exact meaning of “brake” in the ordinance can be debated, as I believe it has been debated in some traffic courts Outside. And of course, negligence per se does not mean our damaged hero is thrown out of court entirely and can recover nothing from the knucklehead behind the wheel. It just means our hero’s recovery is going to be reduced by the percentage of fault the jury must allocate to him for riding without a brake. (If I’m the poor fellow who gets run over, though, negligence per se won’t apply; my fixie has an actual front brake.)
One more thing the dastardly defense attorney may argue is that riding fixed is negligence as a matter of law. This is like negligence per se, except there is no statute defining it. In a very small number of cases not involving statutory violations, the Alaska Supreme Court has ruled negligence is just so darn obvious the trial judge must direct a verdict of negligence. These cases have all involved either rear-end collisions or Kim Farnsworth’s seatbelt. According the court, the trailing driver involved in a rear end collision is negligent as a matter of law and the judge has to instruct the jury to so find. In Ms. Farnsworth’s case, the court said the jury had to allocate fault to the driver who collided with the vehicle she was riding in, even though she claimed she would have escaped injury with a proper functioning seatbelt.
Since our hypothetical fixie accident doesn’t involve either a rear-end collision or Ms. Farnsworth’s seatbelt, I don’t think negligence as a matter of law should apply. In fact, I’d refudiate it if I was the judge. But I suppose it’s still open to the ever aggressive defense lawyer to argue for a new entrant in this category — that riding a fixed gear bike is just so far out on the fringes of an ordered society that the law ought to automatically make the rider negligent just for doing so. I don’t see that working even with old Judge Blackbottom, but I concede some more far-fetched legal arguments have succeeded.
My research on WestlawNext also turned up a motion in limine that a plaintiff’s lawyer in California filed in a fixie case. This motion asked the judge to keep out any mention of the fact that the plaintiff was riding a fixed gear bike at the time of the accident. The theory was that the kind of bike had nothing to do with the accident and was irrelevant. Although I could not discern all the details of this particular case from the summary of the motion I read, I’m skeptical of the motion’s chances for success. One ordinarily expects that all the aspects of a particular accident will come in when comparative fault is at issue. Unless the cyclist was just innocently stopped at the street corner when he was run over, standing next to a priest, a widow and a couple of Girl Scouts selling cookies, all waiting for the light to change, then I’d expect old Judge Blackbottom to give this a quick: “Motion ‘nied counsel, move on.”
In the end, I think that our hero will be able to get to the jury on his claim against the knucklehead driver. The jury will have to retire to the back room to allocate fault amongst the participants in the accident. But I’m not sure that I should take all that much comfort from this likely outcome. I mean, I would like to think our brave hero would be found blameless, but you just have to wonder what an Anchorage jury would do with the case. Are twelve ordinary Anchorage citizens going to relate more to the driver with the cell phone or to the dazzling urbanite roaming the streets on a fixed gear bike?
(By the way, I’ve been thinking about naming my fixie “Mrs. Palsgraf,” but then you were probably able to foresee that.)