herb's blog

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).

We got a study of Bloor bike lanes, but was it set up to fail?

So we got the Bloor Environmental Assessment restarted, thanks to the efforts of Albert Koehl, founder of Bells on Bloor, and Cycle Toronto's ward groups along Bloor. There are a couple reasons, however, that make activists believe that the politicians are committed more to the appearance of being progressive rather than actually building bike lanes on Bloor. They can claim a victory that they've restarted a study on the idea of Bloor bike lanes while avoiding the possible repercussions from merchants.

The first reason is that their request for a pilot project was ignored. The lack of a firm commitment to a pilot project has made Koehl cynical about the outcome. Koehl noted to me that some kind of pilot was being discussed behind the scenes but nothing concrete came before the Public Works committee. So we don't have much reason to believe a pilot will happen (though I'll post the info if I find out more).

Running pilot projects has worked wonders for New York where DOT commissioner Janette Sadik-Khan revolutionized bike lane building by quickly building bike lanes that can easily be tweaked (or even removed) later on. A pilot project would provide instant feedback both to planners and to the community. In Toronto, however, councillors were unwilling to take such an important step.

The second reason is that the EA has been crafted so that it will study just the feasibility of bike lanes on Bloor rather than the best way to implement bike lanes. In a normal situation, the workflow would be like this: let's say a nuclear power plant is proposed to be built by the government. An environmental assessment kicks in by law to help guide the process of how it will be built, understand the negative effects and how to mitigate them. But the Bloor EA is being done ahead of any commitment to Bloor bike lanes. Councillors have not committed to building a bike lane on Bloor, just the feasibility.

And even more annoying is that the EA is not required by law for a bike lane. Recall that the City has happily built all of our other bike lanes without an EA (except for Richmond and Adelaide). An EA makes bike lanes look expensive.

Compare this to the Richmond-Adelaide EA. Here City Council had already voted to build bike lanes and the EA exists to help build it.

We can blame former Mayor Miller for starting this EA treadmill. The Bloor EA provided some cover to show that he was doing something for cyclists rather than show results. It wasn't a commitment to build anything then it was cancelled by Mayor Ford.

It would be easy to just give up at this point, but I suggest that we hold the feet of our politicians to the fire, whether they be progressive or not. Let's build what is possible now (Harbord, Wellesley, Richmond, Adelaide) and push the Bloor councillors to make an actual commitment to a pilot on Bloor.

Bloor study likely to piggyback on Dupont EA, but actual infrastructure still some years away

The public works committee has passed a motion for a combined environmental assessment for Bloor and Dupont streets. The motion still needs to pass City Council. Public works was probably the main hurdle, it being dominated by Ford's appointees, and that passing the EA at Council will be easier.

Councillor Janet Davis' amendment to extend the EA to the Danforth failed. There was also nothing in the motion approving a pilot project for Bloor. It's not clear if City staff can implement a pilot without Council approval, though it doesn't seem likely since staff probably won't take any risks on such a high-profile corridor. Councillors along the corridor will be very careful not to upset local merchants.

It seems odd to combine Dupont and Bloor in one EA. This is probably a strategic move in order to facilitate it getting passed by Council. The Dupont EA was already going to start next year so it seems that it was more politically palatable to include Bloor in that EA rather than try to create a separate EA with its own budget requirements.

Interestingly, Berardinetti, Grimes and Parker voted down Davis' motion, but Councillor Minnan-Wong voted for it. But on the final vote for a Bloor EA without the Danforth, everyone but Minnan-Wong voted for it. It's not a secret that Minnan-Wong would likely not vote for it, but it's interesting that some councillors would not want to extend it to the Danforth. For some of them it would be too close to their own backyard, even though a Danforth bike lane would be less disruptive to car traffic than on Bloor.

Timeline

Even in a best case scenario, actual implementation is some years away. The EA will likely start in 2014 and would probably go for at least a year. Any actual construction, if the EA recommends bike lanes and if Council approves it, would likely not begin until 2016, if the current EA for Richmond-Adelaide is any indication. And even then it's still completely possible that the new Toronto Council will get cold feet and delay or shelve any implementation.

There are some idealists (a minority if this blog's comments are to be trusted) who think that we can prioritize Bloor Street ahead of any other project (such as Harbord) and only complete Harbord after Bloor is "done". Given the likely timeline for Bloor, if these idealists got their way, we would have no new bike lanes from this administration and likely for even longer.

I think few cyclists would agree to such a deal. Something is usually better than nothing.

Cycling staff want your opinion on new parking on Queen West. Hold the panic and rage

The City recently installed a number of bike stands along Queen Street from Gladstone to Markham. Brian Park, Toronto Urban Fellow at the Cycling Unit, told me about their survey of the bike parking, asking that people fill it out:

Transportation Services is installing new bike parking infrastructure between Markham St and Gladstone Ave on Queen St W as part of a special study being conducted by Transportation's Cycling Infrastructure and Programs Unit. We recently updated our webpage - please take a look.

Please be nice be nice in your comments. It's amazing how jerky people can get. The City has already been forced to take remedial action on one installation because of a panicked response from some people.

Pylons repurposed as doomsday signs. Conveniently you'd have to dismount to read them.

This bike rack was installed at the southeast end of Trinity Bellwoods. Brian happened to be there when a furious Dorian approached him, outraged at the bike rack placement and that it would cause disaster and mayhem to rain down on people using the park path. Dorian was kind enough to record the interaction on the Facebook page for City of Toronto Cycling for posterity:

Dorian commanded Brian to "remove it today" preceded by a nice "F you". It appears that Brian did neither, thankfully. Dorian then followed up with his threat to put up signs and create a petition. It appears that Dorian managed to sign up enough panicked people to get City staff to trim the hedges to increase the sight lines around the corner. The bike rack is still there and being used last I looked. I also haven't heard of any tragic deaths due to bike rack impalement. So that's good news.

It doesn't seem to have concerned Dorian that this path exits out onto a sidewalk. If it wasn't a bike rack there it could just as easily have been a child or your grandma. Maybe the path is badly placed but until that gets fixed (not any time soon) only a jerk would take that corner at full speed.

Anyway, space is precious in this City what with businesses generally trying to keep all their sacred curbside parking so putting in bike racks anywhere is tough. It's encouraging enough that City staff are finding parking spots and boulevard space to place some bike racks. So I encourage you to go fill out the survey to help us get more of them. Just be nice about it.

Reluctantly thankful Toronto cyclist

It's easy to be negative. I've often had interactions with people who seem to have little to offer but criticism about the (lack of or poor quality) bike infrastructure in Toronto but also the City staff, politicians and even the volunteer activists. Heck, I'm often quite critical myself given the slow progress and occasional backwards steps. But it's healthy to focus on our blessings now and then. This is the day after all when Canadians are supposed to do count them up. So here goes. (Photo: Thank You letter from student to Mike Layton regarding Shaw Street)

I'm grateful that a lot of people have decided to use bicycles in Toronto for everyday transportation, particularly in downtown where some parts have up to 16% of people commuting to work by bicycle (according to Statscan's 2011 National Household Survey). According to recent counts by some Cycle Toronto volunteers, there are times of the day where cyclists make up about half (50%!) of all traffic on College Street during rush hour (see for yourself). Nearby streets such as Harbord and Queen have traffic mode shares that are above 40% and 30% respectively at rush hour.

Clearly there's a lot of latent demand for better cycling infrastructure.

I'm grateful that we finally might get a good east-west route through Toronto's core on Richmond and Adelaide. The environmental assessment is finishing by January and we'll hopefully get it approved and installed in 2014/15. Likewise, things are moving along on Harbord-Hoskin-Wellesley to provide a second safe cycling route through downtown. We'll finally be able to fill in the gap, have a showcase protected bike lane and provide a safe crossing at Queen's Park. And maybe we'll actually get the environmental assessment restarted for Bloor Street! (Word is that staff are suggesting it get rolled into the Dupont EA).

I'm grateful that even though it has been tough to convince enough politicians to support cycling (it's even been quite hard to get some so-called progressive councillors to override business fetish for curbside parking), we have a couple key bureaucrats who are quite supportive of cycling infrastructure. The General Manager of Transportation Services Stephen Buckley came from Philadelphia where he oversaw a number of new bike lanes. And Chief Planner Jennifer Keesmat understands the importance of safe, connected infrastructure and has fully supported protected bike lanes. She was key, for instance, in getting protected bike lanes on Eglinton for the LRT project.

We're even getting in some bike infrastructure right now. The contraflow bike lane is almost finished on Shaw Street. The bike trails on the Finch hydro corridor are being completed. Bike racks are being installed all along Queen Street between Gladstone and Manning as part of the City's pilot of intensifying available bike parking in key areas. And protected bike lanes on Wellesley will be built this year. It's more than nothing, it's something and it's useful.

(Photo by Tino of College Street bike parking that looks kinda like a car just to taunt those motorheads)

We've got bike tours of art in Art Spin and music fest in the Bicycle Music Festical. And we've even got a big Ai Wei-wei sculpture of bikes at City Hall. Lots of art and bike stuff going on.

The thing that makes me the most hopeful, however, is that cyclists are finally getting organized and becoming vocal. I'm grateful for all the people who put in lots of time to create a strong organization, Cycle Toronto (ne Toronto Cyclists Union). And I'm really grateful to my GF who spent years building the organization up, ensuring that it wasn't just a bunch of complaining cyclists but a savvy, strategic and well-organized group. Which brings me back to my original point. Cyclists who can also focus on the wins, big or small, are also healthier.

Bloor-Annex BIA Chair says We want bike lanes on Bloor

http://www.youtube.com/watch?v=m5wCBNZfh0I

Video by Albert Koehl of the Annex Residents Association. (Thanks Nancy for tip.)

At 2:43, Wade McCallum, Chair of the Bloor-Annex BIA says: "We've made an official stance 'we want bike lanes on Bloor.' We are more than willing to lose the parking and replace them with bike lanes. We’ve talked to the business owners, we had a town hall last year... everybody is in favour of trading parking for bike lanes. So it’s unanimous.“

Now if we can just get the rest of the BIAs on board we can make some real changes in this city.

Why the ebiker hate?

Nobody seems to like ebikers: not cyclists nor motor vehicle drivers and especially not pedestrians. Why is it that ebikers get all this hate? Is there a good reason to hate them? (Photo: Toronto Star)

Certainly there are jerks who ride ebikes. But that is not unique to ebikes. There are jerks who use any kind of wheels. So I don't think this is backed up in fact.

I hear from cyclists who hate ebikers. The reasons they give boil down to hating that they come up quickly and silently. And often in the bike lane. These are valid concerns. But these concerns are all wrapped up into a description of the kind of people who use ebikes. This concern seems to be shared by drivers. I heard a rural driver describe what he saw as a typical ebiker: fat, lazy, unhealthy, low income people. And because the people in this category are entirely "unsexy" it becomes all the easier to hate the mode of transportation and the choice.

The stereotype is accurate (except for lazy). In a recent survey by the City of travel behaviour, we can see that ebikers tend to be older, less healthy and have lower income. A stats nut, inkhorn82, crunched the survey data and spit out some interesting facts. The conclusion: ebikers tend to be older, less healthy and lower income than the average Toronto traveller.

So now we have an interesting picture emerging, with two parallel descriptions of who is most likely to ride E-bikes:

1) 50 – 64 year olds in not the greatest of health
and
2) Non University educated folks with lower than $80,000 income.

I hope that we can separate our concerns about ebikes and the stereotype of the riders. Who rides the ebikes - except for identifying individual jerks - is entirely irrelevant to the discussion as far as I'm concerned. Ironically, this stereotype had until recently been assigned to the lowly bicycle (at least in North America). With bicycles having attained elitist, latte-drinking status it seems the mantle has moved to the ebike.

When I look at ebikes themselves, I find it hard to believe that ebikes are as dangerous as some cyclists make them out to be. Like a bicycle they can be driven fast or slow (though only to a max of 32 km/hr). There are heavier ebikes, but then there are also heavier bicycles. Cargo bikes and bakfietsen, increasingly seen carting around children and groceries, are also heavy.

But more importantly, the people who argue that ebikes are dangerous back up their assertions with absolutely nothing, and compare this danger to nothing.

This outrage over ebikes seems to be another case of ignoring the elephant in the room. Motor vehicles are far more dangerous - they kill many more people than ebikes, weigh a lot more, can go a lot faster - and cyclists are forced to ride amongst these rumbling beasts constantly as if it was the most normal thing to ride in a herd of stampeding elephants.

The next time someone talks about something being "dangerous", if they fail to mention "relative to ...", you can safely ignore them. Everything we do has a risk and it is absolutely a waste of our time to consider "danger" in isolation. This is simply fear mongering. Instead a risk needs to be considered in the context of other risks (and also considered should be perceived versus actual risk). And in this case the risk of an ebike to cyclists pales in comparison to the risk of a motor vehicle.

Compared to the danger of motor vehicles I really don't have much time for this ebiker hate. And find it a waste of time to use this as a basis for transportation policy.

After Cycle Toronto's Bagels for Bikes, is the Harbord BIA wavering in their opposition to the bike lanes?

Rain fell all day, but inside fresh baked goods greeted people at the Harbord Bakery for the Bagels for Bikes "buy-in" last Saturday. People arrived by bike hoping to persuade the Harbord Bakery to drop their opposition to the bidirectional bike lanes which would potentially remove about 20 parking spaces out of about 150 spaces on Harbord1. (Photo: Cycle Toronto)

Cycle Toronto members purchased bagels and other baked goods at the Harbord Bakery and chatted with the local merchants who had also provided some free pastries as a sort of olive branch to the wet cyclists who arrived to show their support for the City's separated bike lane plan.

It might bode well for the bike lanes that public works chair Denzil Minnan-Wong showed up to talk with cyclists and the merchants. Councillor Adam Vaughan, the councillor for that section of Harbord, was not there. It's unclear why.

The Harbord BIA's opposition may have wavered a little bit since the Star reported that the Bakery owner Susan Wisniewski figured the bidirectional bike lane was going to be a "horror story" that would lead to collisions. A bit of "father knows best" and the apocalypse rolled into one.

Neil Wright, Harbord BIA Chair, said that it was the BIA and not the Harbord Bakery which was pushing the anti-bike lane petition. It was unfair, he claimed, of the Toronto Star to put the Harbord Bakery as the leader in the fight against the Harbord bike lane. And even if the BIA was hosting the petition, Wright clarified that the Harbord BIA has yet to take an official stand on the proposed two-way cycle track. They will wait until the official proposal comes out in the next month or so. Is the BIA backtracking a bit or were they misquoted in the media?

We'll give you some love if you do the same

The Harbord BIA would do well to embrace cyclists as customers. Harbord is already the second busiest bike route in Toronto (after College), with cyclists representing 40 per cent of traffic during rush hour, according to a city report released in June. On any day, the Harbord Bakery and other businesses along the street likely see more dollars coming in from people who walked, biked or took TTC in then who drove. The evidence shows us that while drivers may spend more for each trip they make, cyclists return much more frequently and end up spending more.

With limited car parking and no more room for cars on the roadway, businesses need to look beyond cars for ways to attract customers. Green Apple Books in San Francisco realized this as well: "We're in a pretty congested neighborhood; parking is tough. There's no alleys, so delivery trucks have to do their business up front. On top of it, sidewalks are pretty narrow." Sounds like many downtown Toronto businesses.

Rather than killing business, the bidirectional bike lanes would make it easier for customers to arrive with a minimal loss of car parking (only 20 car parking spaces on all of Harbord). Between Queen's Park Circle and Ossington only 115 out of 195 (59%) of the parking spaces are occupied on average. Even after the loss of some spaces, the BIA will still have enough spaces nearby to meet all the peak demand. (The peak demand, by the way, is actually on weekday evenings which suggests that a lot of it is occupied by local residents and not even customers necessarily.)

Leave the predictions to the experts
Instead of predicting a coming apocalypse, businesses should be working with the City and with cyclists to better understand the risks of the various options and create a good plan with which we can all be happy. The best available evidence we have at this time suggest that bidirectional cycle tracks would be safer than the current door-zone cycling on Harbord. A study (Lusk et al.) of the bidirectional cycle tracks in Montreal and found them to be safer than the adjacent streets without any protection: “Compared with bicycling on a reference street…these cycle tracks had a 28% lower injury rate.”

No horror stories in Montreal: cycle tracks have made Montreal cyclists happier and safer. We can do the same here.

1. Yes, I'm talking again about Harbord Street. Not only is it a regular route for me (and many others), it is a bit of a bellweather of how political will in the face of merchant opposition for cycling infrastructure. If we can't bloody well finish the Harbord bike lane after a couple decades, then what hope do we have for Bloor or other downtown streets?

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