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January-February 2006 Newsletter

Advocacy Matters

by , VP Advocacy

Those of you who don’t follow kycyclist, the LBC mailing list, may not have heard of an important decision by the Kentucky Supreme Court regarding cyclists’ rights. Before discussing the decision, you should know that LBC member Vic Maddox, who besides being an excellent bicycle rider, also happens to be a pretty good lawyer, stepped in and helped the club file a “friend of court,” or amicus curiae brief, in a case that was on appeal from the Bourbon Circuit Court. Vic deserves more than thanks but our advocacy budget is slim, so please give him your thanks when you see him.

The case, Previs v. Dailey, involved a cyclist riding her bicycle slowly up a hill. A passing motorist, pulling two farm trailers behind his truck, cut back in before clearing her. She was struck by the second trailer and injured, being pulled along for a distance before being thrown into a ditch. Although the driver testified that he had not looked back to be sure it was safe to return to his lane, and thereby tacitly admitting that he had been negligent as a matter of law, the trial court denied the cyclist’s motion for a directed verdict and submitted the case to the jury. Ten of the twelve jurors found in favor of the truck driver, finding no negligence on his part.

The next day, the foreman of the jury, and one of two who had not signed the verdict, approached the trial judge and reported that the jury had ignored the evidence presented at trial and had decided the case by deciding that the cyclist shouldn’t have been on the road or should have gotten off the road when the truck passed.

The case was appealed to the Kentucky Court of Appeals by counsel for the cyclist. The principal argument before the Court of Appeals involved the alleged jury misconduct. When the Court of Appeals affirmed the trial court, the LBC, along with the League of American Bicyclists and other Kentucky bicycling clubs, was asked to assist in the request to the Supreme Court of Kentucky to hear the case. Vic stepped forward on very short notice and wrote an excellent brief arguing that the trial court erred by not finding the driver negligent as a matter of law. While the Supreme Court doesn’t mention our brief, it decided the case on the issue raised by Vic and not mentioned by the cyclist’s attorney.

The Supreme Court granted review and reversed the trial court. The decision is important because it will be published and is therefore binding authority for trial courts faced with a similar case.

In deciding the case, the Court rejected the “speculative, self-serving comments by [the driver] concerning [the cyclist’s] inexperience with biking” [the driver had argued that perhaps the cyclist sped up while he was passing and that he hadn’t looked back because it was her job to protect herself after he started passing]. Even if the cyclist was inexperienced or negligent, the Court held that it “did not have any bearing on the fact that [the driver] was negligent as a matter of law. The Court therefore held that the trial court should not have submitted the question of the driver’s negligence to the jury,and should have directed a verdict in favor of the cyclist on that issue.The Court stated that “we must conclude that the jury’s verdict absolving [the driver] of liability was so flagrantly and palpably against the weight of the evidence as to indicate that it was reached as a result of passion or prejudice.”

Of benefit to all cyclists, the Supreme Court specifically noted that a driver’s duty when passing a cyclist requires that the driver not pass “unless he can do so without interfering with the safe operation of [the] bicycle,” and that when passing, the driver may not drive to his right until he is reasonably clear of the rider.

The Court sent the case back to the jury to determine if the cyclist was negligent (no such evidence was offered at trial) and to fix her damages. The underlying problem with this case is that it demonstrates the hostility juries and many courts feel towards cyclists. Remember when you blow through a stop sign in front of a motorist or ride in a group that impedes traffic even when it is safe to let cars pass, the person you are angering may someday sit on a jury in a case involving a cyclist. Ten of the Bourbon County jurors apparently felt we have no right on the road. There’s still a lot of education left for both cyclists and drivers.

A copy of the Kentucky Supreme Court opinion is available here:

http://www.louisvillebicycleclub.org/news/2000s/2005-05/previs.pdf PDF document


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web posted: 31 December 2005
last updated: 2 January 2006