Drivers still liable even if they hit sidewalk cyclists

A reader sent this question to me:

Hi,

I started commuting by bike this year around Vaughan and the North Toronto Area. Given the lack of bike lanes on my commute and the speed of traffic on the roads I use the sidewalks for some of my commute. I have noticed that drivers pulling out of driveways or turning at intersections rarely stop at the sidewalks or intersections to check for pedestrians as required by the Highway Traffic Act (HTA). I realise that I also violate the HTA by riding on the sidewalk, but I would like to know if I am ever hit because a driver did not check for pedestrian traffic when pulling out of a driveway, do I have any rights as a cyclist or am I fully to blame for riding on the side walk?

Thank you,
Tom

I'm no lawyer so I passed the question on to Patrick Brown of Mcleish Orlando, who has represented a lot of cyclists involved in collisions. Turns out that even if you're riding on the sidewalk a driver will likely still be largely liable for damages in a civil suit.

Here's what Patrick said:

I have had cases involving both situations: 1) where the cyclist is on the sidewalk and is hit by a car on a driveway leading to the road, and 2) where the cyclist is on the sidewalk and rides on to the roadway at an intersection. In each case, the lion share of liability has been found against the driver of the car regardless of the fact that the person was riding on the sidewalk.

In a civil case, whenever a cyclist or pedestrian is struck down by a car, there is a reverse onus applied to the driver.

Section 193 of Highway Traffic Act imposes a reverse onus on the driver who strikes a pedestrian/cyclist. The Defendant driver is presumed to have been negligent unless he/she can prove otherwise. The courts have repeatedly indicated that “the defendant cannot discharge the onus on him/her by showing that the plaintiff’s loss or damage was caused in part by the negligence of the plaintiff. That can only be done by the defendant showing that there was no negligence or misconduct on his part.” (Shapiro v. Wikinson, [1943] O.J. No. 806 (Ont. C.A.), aff’d by [1944] S.C.R. 443 (S.C.C.) . The courts have therefore found that the duty owed by the driver is to “take proper precautions to guard against risks that might reasonably be anticipated to arise.”

In many cases, the driver is responsible to look for pedestrians and other users of the sidewalk. The fact that a person is on a bike does not remove this responsibility from the driver and does not give the driver to hit the person. therefore, in the majority of instances, the driver of the car will be held to be at fault unless they can show that they took reasonable steps to look and see what was there.

In these cases, the driver’s insurance defence lawyer will assert contributory negligence against the cyclist. Depending on the nature of the collision, the cyclist may have a portion of fault attributed to him or her. For example, if the cyclist was at a standstill or moving slowly when struck, the fact they were on the sidewalk with a bike would be immaterial, since they were there to be seen. In those circumstances, the driver would likely be found 100 percent to blame. If, however, the cyclist was riding at a quick pace and they were difficult to see due to obstructions, a portion of fault may be found against them. Once fault is determined, the driver of the car is responsible to pay damages based on their percentage of fault.

Therefore, even though you are riding on a sidewalk and a car hits you, you can still successfully sue for damages. In the majority of circumstances, the larger share [and in many cases 100% share] will fall on the driver.

Some people will want me to take a firm stance against sidewalk cycling. I think it's more complicated than that. It's not surprising that people choose to ride on the sidewalk in the suburbs. The roads are simply scary, even for experienced cyclists like myself (and more so the older I get). I usually take the road but sometimes will only carefully take the sidewalk if the road is too scary (hello Highway 7).

I've given some tips before on how to safely and respectfully ride on the sidewalk. Since we teach our children to ride on the sidewalk safely and respectfully, perhaps we should also teach adults who are not able to navigate fast suburban traffic how to use the sidewalks as well (legality aside).

Comments

In Japan people mainly ride bikes on sidewalks. Same on multi-use paths in North America. So it can be done relatively safely, even if it's not optimal.

First, great post, in fact you should post more legal type articles. Thanks also to Patrick Brown for the information.

Second, besides the fact that it isn't legal for bikes with above a certain wheel size to ride on the sidewalk, I see absolutely no ethical problem with it as long as cyclists aren't being jerks about it. Especially in areas where there are sidewalks that have few pedestrians, but the automobile traffic volume and speed is high.

As someone who advises cyclists not to ride on sidewalks, I would point out that liability considerations only come into play for cyclists actually hit and injured by a motorist, and accident statistics strongly suggest you run a greater risk by riding on the sidewalk than you do in traffic.

I know people who think of my decision to ride Finch and Bayview as a sign of insanity. I know how intimidating those streets feel. I know what it takes to ride them. But I still urge cyclists to make their (our) best efforts to avoid riding on sidewalks, because, aside from the risk to the individual cyclist, sidewalk cyclists have a non-zero risk of a fatal collision with a pedestrian. If I truly consider a street too dangerous or frightening, I take the ravines, I take the side street, I take the bus if I have to. I don't say now that I will never under any circumstance ride a sidewalk, but I make sidewalk cycling my very last resort.

I dislike, intensely dislike, the complaints directed at cyclists as a community based on a few of our number. I don't hold it against Rosie Dimanno when pedestrians wander into the streets expecting traffic to part like the Red Sea, or go wandering obliviously down the bike lanes; I resent her attempt to lump me with those in the cycling community who misbehave. I get stuck on the word community, because as a cyclist I belong to a community. I go on memorial rides because I believe none of us rides alone. Because I belong to a community, what I do, good or bad, affects others in the community. I can't mourn with cyclists as a community one day and claim no responsibility for a drunk wobbling down the sidewalk who shouts "who cares" when confronted about his behaviour.

John G. Spragge
Mariner, cyclist, pilot

I also advise cyclists not to ride on sidewalks, and would also do it only in case of emergency (hasn't happened). Because it's the law. But people bring in the safety argument, and I'd like to believe the law is well-founded, so please, please, where are these accident statistics you speak of?

I've seen statistics of the sort that x% of injuries include sidewalk cycling as a cause. But I haven't seen, and I want to see, something that includes the context for that number--specifically, how much cycling takes place on sidewalks versus streets? For the sake of argument, say 50% of cyclist injuries involve a cyclist on the sidewalk and the other 50% don't. And say 90% of cycling takes place on the sidewalk. In that case it would seem clear to me that sidewalk cycling would actually be safer, with the other 10% of cyclists responsible for fully 50% of the injuries. And if the numbers were reversed one would make the opposite inference.

Where can I find the numbers?

UBC Bicycling in Cities program did a literature review of the injury studies of different infrastructure, including sidewalks. On study, Wachtel and
Lewiston (1994), showed that cycling on the sidewalk is associated with higher risk. The "relative risk" (RR) compared to the major roadway was 1.8 (where the roadway is 1). The elevated risk on sidewalks, however, is almost exclusively related to cycling against traffic (RR = 1.9) vs. with traffic (RR = 0.9).

Note that riding on the sidewalk is not somehow inherently dangerous, it depends on the intersection design and the behaviour of the cyclists (and drivers). Despite so many people repeating by rote that cycling on the sidewalk is "extremely dangerous" we still send our kids to ride on the sidewalk. The fact is, both kids and adults can learn how to ride more safely on the sidewalk. For instance, we teach kids to stop at driveways and intersections and look instead of zooming through. And from the study above we know that the relative risk goes down when we ride with the direction of traffic.

As for your last point, Kivi, that reminds me...

When I worked briefly with the City we were doing a multi-year study of cyclist counts at various spots around the city. This data, unfortunately, has never been released because I think it would provide some interesting patterns. One thing I noticed was that the City was saying that 30% of suburban cyclists ended up in crashes while cycling on the sidewalk. With this cyclist count, however, I could tell that on average about 30% of cyclists in the suburb chose to ride on the sidewalk. In my opinion it didn't seem likely that we'd be able to make a strong conclusion that sidewalk cycling was more dangerous than riding on the road.

So, in opposition to other commenters, I reiterate that if people feel safer on the sidewalk than go ahead, whether you are young or old (legality aside). Just be respectful of pedestrians and take precautions since intersections can be hazardous. I don't blame people in the suburbs for choosing to ride the sidewalk since the alternatives are often worse.

People ride on the sidewalk because, to them, riding on the street is dangerous. We need to make the streets less dangerous for bicycles, bike lanes is one step, slower speed limits is another.

I have very little sympathy for cyclists on the sidewalk who are worried about cars at intersections. Lets look at it from the view point of the car driver (could be me, some of the time) who is pulling out from a side-street onto a busy road at rush-hour (which in T.O is any time of the day). The typical driver does check the sidewalk, both ways, before moving into traffic. Afterwards, he knows he has a certain amount of time available to divert his attention to the matter of merging into busy traffic. The problem is that a quick check of the sidewalk is ok only if you are expecting pedestrians to come at pedestrian speeds. A cyclist going at only a moderate pace will inevitably surprise most drivers, even though they have checked the sidewalk. An alert driver at an intersection already has so many demands on his/her attention that it is inherently risky to create more.

Cyclists on the sidewalk should get off and walk across intersections, and accept the same risks as pedestrians. They should not expect the legal system to give them a shield against their own risky behaviour.

I usually refer to Aultmann-Hall, L. & Adams, M.F. (1998). See also here and here.

John G. Spragge
Mariner, cyclist, pilot

Thanks, folks, very much appreciate the pointers. Looks like this is the money quote, from John's second link:

I searched for studies that compared accident rates on the road versus accident rates on sidewalks, and did not find any that found a higher accident rate for road cyclists.

That blogger seems to have missed some studies then.

As I linked to before, this comprehensive literature review found two studies where there were fewer collisions on the sidewalk than on the roadway.

The first is the well-known Wachtel and Lewiston study that found that if the cyclist was going in the same direction as cars on the sidewalk, their risk was less than riding on the roadway.

The second study is Tinsworth et al. (1994) Bicycle-related injuries: Injury, Hazard, and Risk Patterns which found that cycling on the sidewalk at a lower risk both for adults and for children compared to riding on a major road.

Of course, there are other studies which showed the opposite so we need to be careful to make definitive conclusions from this.

But I go back to the question, if cycling on the sidewalk is so dangerous why do we teach our children to ride on sidewalks? The specific risks of sidewalk cycling are easily managed. So easy even our children can figure them out.

I give children and elderly cyclists plenty of sympathy for riding on the sidewalk. Let's not pass judgement without understanding the particular circumstances they face and the choices they have.

I think the law is quite fair to take into account that if it's reasonable that the driver could have seen the cyclist that they should be liable for damages.

Yes, I did see that intriguing suggestion in Wachtel and Lewiston. But there's no statistical significance--with only 48 accidents reported, the results, suggestive as they are, are indistinguishable from random noise.

I don't have access to Tinsworth to check for significance, but in their discussion of the paper, Reynolds et al. do note five other studies that had the opposite finding.

I agree, we do need to be careful.

Why do we teach children to ride on sidewalks? I think for lots of reasons that don't hold true for adults. Kids are small, and slow, and unpredictable, and don't necessarily know traffic laws so well. It's also because parents perceive the sidewalks as safer, which brings us full circle. But people's perception of risk is actually really bad.

I have no difficulty believing the sidewalks of the street where I live, which ends at a park over the Humber valley, offer greater safety than the traffic lanes of Bloor. I believe the exception for children in the cycling bylaw envisioned parents teaching young kids to ride on the sidewalks of quite and exclusively residential streets. I see a real difference, both in terms of safety and in terms of effect on pedestrians, between teaching a child to ride on a residential street and using a sidewalk as a refuge from a major arterial street.

For that matter, I see a big ethical difference between riding the sidewalks out of fear, however misplaced, and a drink or drug-fueled careless run along a downtown sidewalk. I respect and sympathize with cyclists who use the sidewalk because traffic frightens them, even as I disagree with them. Indeed, I have said before that persuading cyclists not to ride in sidewalks will ultimately require building infrastructure and effectively deterring the ignorant bullying of cyclists by motorists. But in the end, I have to say that because of the dangers sidewalk cycling poses to us as pedestrians, and because of the dangers sidewalk cycling poses to us as cyclists, I still advise cyclists to avoid it.

John G. Spragge
Mariner, cyclist, pilot

"One of the big arguments against adult cyclists riding on sidewalks is that when a motorist strikes a cyclist who is riding on a sidewalk or in a crosswalk, the cyclist is judged to be in the wrong. The most high-profile example of that in the Waterloo Region was about eight years ago, when a local judge turned right into the parking lot of the Beechwood Plaza in Waterloo and struck a 14-year-old girl riding her bicycle along the sidewalk and across the mall parking lot entrance." http://therecord.blogs.com/take_the_lane/2011/09/judge-bea...

Tyler, this is just one contra example where the judge took the side of the driver (who also happened to be a judge). Bill Bean (the blogger) is incorrect that this is always the case.

Let me reiterate what lawyer Patrick Brown said in my post. In the vast majority of cases the majority responsibility is on the driver. There is a reverse onus in the law.

"A family leaving the mall as I was unlocking my bike really prepared their young child -- telling him it’s the danger time so hold our hand at all times. The parking lot is extremely dangerous.
It’s not all that far fetched either. Unless I’m there early morning (8am or earlier) it is the most dangerous spot in the city I cycle or walk." http://bicyclestc.blogspot.ca/2012/11/fairview-mall-and-blue-box.html

“The Westlake parking lot remains a very popular cycling route. Unfortunately, because there is no cycling specific infrastructure, traversing the parking lots can lead to dangerous situations and frustrating conflicts.”
http://www.seattlebikeblog.com/2013/10/25/open-house-to-discuss-westlake...
The design of Koningin Julianaplein aims to keep cars, cyclists, and pedestrians as separate as possible. Navigating through parking lots and areas of higher pedestrian activity is an issue for cyclists. The main feature of this commercial area is the bidirectional cycle track that runs between the parking lot and the mall stores. Here, cyclists are able to easily ride directly through the area without interruption. http://wiki.coe.neu.edu/groups/nl2011transpo/wiki/f9702/Juliannaplien.html Should Mall and Grocery store parking lots have bike lanes?

It's surprising how many cyclists don't take extra precautions when riding on the sidewalk. I rarely do it, but when I have to, I ride more slowly and keep a close eye on my surroundings, especially driveways and anytime I have to cross the street. Seems pretty simple. I understand that accidents happen, and very often, it's the driver's fault, but as a cyclist, wouldn't you rather be extra careful and just not get hit?

pennyfarthing ok frye