CalBike Joins Amicus Brief in Safe Streets Accountability Case
On January 3, CalBike joined with Bike East Bay and the San Francisco Bicycle Coalition to file an amicus brief with the California Supreme Court in the case of Whitehead vs. City of Oakland. We rarely get involved in legal cases, but this case, in which lower courts used flawed logic to immunize the City of Oakland for the inadequate road maintenance that led to the crash, sets a dangerous precedent.
Fundamentally, lower court and appellate judges have categorized bike riders as “recreational” street users who venture onto public streets at their own risk. This position reduces bicycles to toys or exercise equipment and seriously endangers the safety of people riding bikes on California’s public roads, whether for exercise, transportation, or a mix of both.
The crux of the lawsuit
In 2017, Ty Whitehead was on a training ride for the AIDS Lifecycle in the Oakland Hills when his bike hit a pothole. Whitehead was thrown from the bike and seriously injured, and he sued the City of Oakland. This crash is another in a long string of bicyclist injuries and fatalities caused by Oakland’s poorly maintained roads.
But, unlike in most cases, the city has contested Whitehead’s lawsuit rather than settling. Oakland won in the trial court and on appeal, and the case could set a very bad precedent when it comes to holding cities responsible for maintaining safe roadways.
Whitehead had signed a liability waiver as part of his participation in AIDS Lifecycle. Oakland argued that, since he was on a Lifecycle training ride at the time of the crash, it couldn’t be held liable, even though the city wasn’t a party to the agreement Whitehead had signed.
The legal principles are complex, but it boils down to a city refusing to take responsibility for a crash in an area with a reported pothole because the rider signed a liability waiver with a third party. This is a dangerous precedent since long-distance ride participants aren’t the only bike riders who sign liability waivers. For example, bike-share user agreements often include waivers. Does that mean that if a rider wipes out because of a known but unremediated road hazard on a bike-share bike, the city isn’t liable for their injuries resulting from poor road maintenance?
Oakland’s bad faith
A few years ago, Oakland conducted a study aimed at understanding the underlying causes behind the high number of lawsuits for bicyclist injuries and how to reduce those costs. It discovered, not surprisingly, that poor pavement conditions were at fault in more than half of these lawsuits.
Oakland’s Department of Transportation is probably, like its counterparts in most California cities, underfunded and overburdened. The city has made big strides in providing protective infrastructure for people biking and walking in recent years and shown that it can move fast at times, like when it installed a quick-build upgrade to a crosswalk a few months after a pedestrian was hit and killed.
But Oakland didn’t respond to the information about the role of bad pavement and especially potholes in bike crash injuries by increasing the budget for road repair and prioritizing bike routes. Instead, it blamed the victim, painting bike riders as risk-taking daredevils. This is exactly the wrong messaging if you want more people to switch from driving to riding a bike. “Get on a bike — but also, you might die, so take your chances” isn’t a winning message.
Here’s how the bike coalition brief, drafted by Shaana A. Rahman of Rahman Law, summarized the city’s response to the data on bike-related lawsuits:
“The Oakland DOT summarized five strategies, not to properly maintain its bikeways per se, but rather to ‘manage and reduce’ their litigation exposure. One strategy included communicating to the public ‘the inherent risks (and benefits) of bicycling, particularly in the Oakland Hills, and the structural deficit in funding for paving.’ This communication strategy included the City identifying bicycling as an ‘inherently risky activity’ and sending the message that bicyclists should expect Oakland’s streets to have uneven roadway surfaces.”
Bike riders were singled out for this treatment, as the brief notes:
“The City supported its messaging that bicycling is a purported ‘inherently risky activity’ with its data showing that bicycle claims and lawsuits are costly. The data, of course, can also be interpreted to mean the City streets are dangerous thereby causing injuries to cyclists. Notably, the City’s data also shows that 50% of all claims and lawsuits against it in the same period were related to pedestrian incidents, versus just 6% of bicycle incidents. The Memorandum does not similarly conclude that the act of walking is inherently risky.”
Yes, Oakland used the concept that bike riding is inherently dangerous to support its arguments:
“While the City of Oakland does not assert immunity pursuant to §831.7, its argument rests heavily on the concept that the type of cycling Mr. Whitehead engaged in was dangerous. For
instance, the City asserts Mr. Whitehead ‘knew that cycling was dangerous and that one of those dangers was the risk of being injured by a pothole’ and that ‘[l]ong-distance cycling is a known dangerous activity.’ (ABM 40.) The City further asserts that ‘cycling on city streets is an inherently dangerous activity.’
“While encountering a pothole while riding a bicycle may indeed be a danger to cyclists, so too would be the risk of being struck by an inattentive driver. These so-called dangers or risks
can be borne by someone cycling to work or riding with friends to train for a long-distance ride. They can also be borne by pedestrians, and children on Big Wheels.”
The City’s argument is part of a long history of painting people on bikes as careless, reckless quasi-criminals who deserve any injuries they get while riding. It’s a dangerous assumption that leads drivers to see bike riders as less human and drive more recklessly around them. The California judicial system shouldn’t support this flawed and harmful way of thinking about people on bikes.
If you get hurt while having fun, it doesn’t count
Even worse, the City of Oakland’s arguments and the rulings by the court trivialize the act of riding a bike. From the brief:
“Simply put, riding a bicycle should be treated no differently than driving a car as driving a car can also be recreational. Were Plaintiff driving a car instead of riding a bike, there is no question that the City could not escape liability by asserting the Plaintiff was just “driving recreationally.”
Can you imagine a defendant arguing that it isn’t liable for injuries sustained in a car crash because the victim was driving around for pleasure? No, neither can we.
Whitehead vs. City of Oakland crucial to protecting the rights of bike riders
We need more people to ride bikes, walk, and take public transit. The way to encourage this is to make our streets safer for people who aren’t in a motor vehicle. The rulings in this lawsuit have essentially sent the message that people operate bikes at their own risk, regardless of a city failing to address reported road hazards.
If the California Supreme Court upholds the rulings of the lower courts in this case, it could have a chilling effect on bicycle mode shift in California.
From the brief:
“If exculpatory clauses [in waivers] like the one at issue are valid and enforceable as to bicyclists like Mr. Whitehead, they will be valid and enforceable as to the casual commute rider, or high school student riding to school on a rental bike. Nothing in the Act suggests the Legislature intended public entities to avoid responsibility for maintaining its public roads for bicyclists. Upholding the Court of Appeal ruling will do just that.”
Oakland has a gold rating on the League of American Bicyclists Bicycle Friendly Communities list. Its unfriendly response to the ongoing issue of bike riders injured on its poorly maintained streets makes us wonder if that ranking is deserved.