In TN there is no legal obligation to see a cyclist

I’ve been kicking this around in my head for a few days trying to come to some sort of conclusion as to why a grand jury refused to indict a truck driver for a self-evident misdemeanor crime. Other people have, too.

Facts are that an experienced cyclist using an “obnoxiously bright rear flashing light” in broad daylight in clear weather was riding along when a box truck came alongside, caught him with something, maybe a bumper nobody knows, and flung him beneath the wheels. The TN laws are the usual FTR and the 3 foot law, but the 3 foot rule is considered “new” since it has only been in effect for two years.

So, taking the facts and applying the law, I have to take the investigator at his word [“could have seen the bike, but it is not likely that he should have seen the bike.”] and since, according to him, there is no legal obligation to see a cyclist, one can’t be held responsible for not giving 3 feet of distance for what should not be  seen.  I say this because it would seem to me that catching a cyclist with something, whether that would be a mirror, a bumper or whatever would be self evident that a proper (never mind 3 feet) distance was not being kept.

The investigator’s logic, backed up by the prosecutor, eliminates cycling on any street, whether that be the curb hugging or the Vehicular Cycling method, since the driver can legally ignore the cyclist and a smack from behind would be permissible by just claiming the cyclist couldn’t be seen and it is not likely the cyclist “should” be seen. One law enforcement official mentioned that he didn’t have a vest.

Afterwards, the sheriff must have been taking some heat because he promises to start enforcing the new 3 foot law after it was discovered that not a single citation has been written enforcing it since the law was created. Excatly how to enforce it, is another matter. You have to read the article to see what he is considering.

Lots of links if you are interested. Maybe you can glean something I missed.

15 replies
  1. fred_dot_u
    fred_dot_u says:

    This is certainly an unfortunate turn of events. Even sadder is that there is not likely to be much outcry by the “general public” over such an assessment.

    One of my clients told me today, “Do yourself a favor, get a flag on that thing”. I explained that I did not need a flag and he suggested that a motorist would not be able to see me and I would therefore be liable for any crashes. His attitude was not going to change and I wasn’t going to take a chance of offending a client, although his comment and diatribe was offensive to me.

    On a more positive note, I received unofficial word, soon to be followed by official documents, that my motion to dismiss was accepted. The public record shows “DISMISSED” on each of the two citations for 316.2065 (5)(a) and I can’t be more elated.

    When I have the official documents, I will be offering copies in PDF form for any and all takers. I’m hopeful that the legal documents will be comprehensive enough to help law enforcement understand the law. Who am I kidding? I just want them to let me ride safely!

    By the way, my daytime SuperBrightLED taillight (2″x6″) is steady blindingly bright, not flashing. I hope that helps.

  2. Eric
    Eric says:

    Your client is really thinking you shouldn’t be out there. I used to use a flag and I think it helped a bit, but only on really winding roads where it might be seen looking across a tight bend where high weeds would obstruct the view, if you know what I mean. The flag was higher than the weeds.

    But on a straight road? Driving something bright yellow with a light on the back? If they don’t see you that way, then a flag wouldn’t help.

    Every year we have at least one car driving into the back of a large bright yellow object with flashing lights on it. Would a flag help the school bus?

    Good news about the dismissal. The papers won’t say much. Maybe a letter from the court saying nothing much interesting other than dismissed. I doubt any reason will be given.

    Still, it’s something to show any cop that bothers you again about it. First you show him copies of the tickets, then you show him a copy of the letter from the judge and you tell him why. The letter should be a good enough talisman to ward off evil spirits.

    This way he can shake his head and shrug his shoulders and say he doesn’t agree, but if the judge is going to dismiss his new ticket, he won’t be writing it. Gives you both an out. Blame it on the judge.

  3. Mighk
    Mighk says:

    What other things are motorists not obligated to see? A stop sign isn’t a whole lot larger than a bicyclist. Perhaps they shouldn’t be obligated to see those either. How about a child in a marked crosswalk?; smaller than an adult bicyclist.

    That’s plain ol’ friggin’ insanity. I’m stayin’ away from Tennessee.

  4. Mighk
    Mighk says:

    Strategy for attorney’s representing cyclists:
    Show photo of cyclist standing next to stop sign. Of cyclist next to child in crosswalk, etc. Ask jury what they see.

  5. rodney
    rodney says:

    Terrible news this post is for cyclists and pedestrians and other motorists as well. “I didn’t see you” = no accountability! and remind me about my personal feelings on the subject.

    Perhaps if there were changes made to include training/education on other modes of transport, with an appropriate participation level, this incident may have been avoided.

    It is a fact that because of my involvement in cycling (commuting) and alternate modes of transport, I have noticed my “motoring” skills improve vastly.

    Plain and simple, You ain’t the only one out there! Drive defensively. Sure accidents will happen, but the majority are preventable if we just act accordingly and responsibly!

  6. AndrewP
    AndrewP says:

    The results are for the criminal case. I’m sure there will be a civil case where the burden of proof is not as high (think O.J. Simpson case). Not that the civil case will have any where near as big an impact with the public as a criminal case would ….

    Reading the comments of some of the people up there — I sure hope that it a small minority. It sends shivers down my back to hear people talk with that kind of animosity towards all cyclists …..

  7. AndrewP
    AndrewP says:

    Fred: Sorry, also meant to say “Congrats!!!!!! A big burden should have lifted from your shoulders!!

    Would any of your tickets and subsequent judgements be of help to others as printouts to show if police attempt to cite for the same reasons?

  8. Abhishek
    Abhishek says:

    We had a similar case in Jacksonville where a cyclist died due to being hit by a car. The cyclist was wearing dark clothes and did not have any lights on the bike. That was wrong on the part of the cyclist but he deserves a ticket, not an instant death penalty.

    The motorist was supposedly not even fined. Bikejax is following up the police report after which I plan to pursue legal counsel. The accident happened at night. The road is plenty lit after dark. I know because I was there putting up the ghost bike. It is essentially a 4 lane road with 10 foot lanes and no median. There is no way a motorist should have missed the cyclist unless the cyclist jumped in front of the motorist in a ninja move to commit suicide.

    This sucks. I am wearing a black polo today. What happens if I get hit while following the law on my way home for lunch? The only job a motorist has is to follow the signs, obey the laws and NOT HIT SOMETHING IN THE PROCESS.

    I have a traffic law question:
    If Motorist A fails to stop behind a car (Motorist B) at a traffic light and the Motorist B’s car does not have working tail lights, whose fault is it? Motorist A, Motorist B or Both A & B? If the answer is ‘Both A & B’ shouldn’t the result be the same if a bicyclist was hit?

  9. Keri
    Keri says:

    Shek, I have no legal expertise, but I’d say that “failure to use due care” should be a factor in that crash.

    I have encountered unlit, darkly-clad cyclists at night many times. It’s quite common around here. I have seen them with my headlights and managed to avoid them. I drive the speed limit and pay attention to the road. Sadly, our culture seems to think that’s too much to ask of motorists anymore. (That doesn’t absolve cyclists of the responsibility to comply with the law!)

    While I personally feel more comfortable wearing high-vis clothing on high-speed roads, I agree with my friend John Schubert who has said there is an an unintended consequence in over-emphasizing high-vis clothing. Defense attorneys could seize on that as a way to get their negligent clients off the hook.

    The guy in a black shirt has just as much right to be safe on the road as the one in a Pear Izumi dayglo green jacket.

  10. Evan (Oregon)
    Evan (Oregon) says:

    I used to joke that I could light myself on fire while riding and most motorists would still claim they never saw me.

    I have so much reflective tape on my bike I think it might be safe to say that I am more visible at night than in the daytime. If I get hit at night, somebody was aiming for me.

    So, does the same get out of jail free law apply if a driver hits someone on a motorcycle, or a person crossing the street?

    Sounds like TN needs laws like they have in Amsterdam or Copenhagen, which automatically assumes the driver is at fault.

  11. JC Tripp
    JC Tripp says:

    I lived in Chattanooga for a few months a couple of years ago, wanting to check out the scene there. I had read that it was very pro-cycling. Yes, there are bikelanes and people using them. But, as anywhere else, cars rule. Compounding this is the fact that overall it is a hilly city and many of the roads have no shoulders at all. Also, it’s a sprawled out city and most of the residential areas are outside the downtown. I would suggest that anyone concerned about this case contact some of the city’s principle businesses which rely on tourism and let them know how concerned you are about bicycling safety.

  12. rodney
    rodney says:

    I went back and read more of the comments. What a bunch of inbred, backwoods, hillbilly rednecks these folks are.

    After reading the comments, it seriously makes me think of checking out of the human race. I don’t want to be “guilty by association” if you know what I mean.

  13. fred_dot_u
    fred_dot_u says:

    AndrewP, I plan to build a PDF package containing the citations and the supporting documents that were included in the Motion to Dismiss, which was so wonderfully successful! I will make it known in the many forums I visit that it’s available and Keri has also offered to place a link here.

    Directly related to that, a Port Orange PD patrol car trailed me for some distance and then passed and continued on his way. Perhaps they got the good news before I did.

    I rarely have to ride at night, although I very much enjoy the dark morning hours. That new 3M clothing that turns a rider into a human torch is pretty amazing, but would not work in our hot humid environment and would be useless for me inside the velomobile.

  14. Trikester
    Trikester says:

    “Didn’t SEE” is a legal excuse?

    Okay, how about a driver who “didn’t see” the elderly disabled woman with her buggy crossing on a red because she can’t walk fast enough on the pedestrian light to get through before it changes?

    “Didn’t see” is a wide-open invitation to abuse anything on the road not encased in steel armor.

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