Editor note: In response to the Freaknomics blog article about motoists being at fault in 90% of bike-car accidents, local attorney and cyclist Jay Paul Warren posted on the ACA e-mail list this advice if you should be so unfortunate as to be hit by a car while riding. (No advice on what to do if you are hit by a police officer and thrown in the poke.) Jay has kindly allowed us to republish it here.

Anyone who has been in an accident either on their bike or while in a motor vehicle knows that it is frightening, discombobulating, and that you aren’t always thinking clearly at the time.  I live less than a mile from the veloway in Austin, and during just the short trip from my house there, I have almost been hit at least 10 times.

No one wants to consider the idea of being injured while riding their bicycle, but we all must accept the reality of the situation.  Bicyclists are at risk while traveling on streets and thoroughfares with motor vehicles.  While there are some courteous drivers on the roadways of Central Texas, they are the exception and not the standard. Most drivers do not take into account the safety of bicyclists, safe passing distances; and often disregard them at stop signs and stop lights.  Based on the Governor Perry’s veto of the recent “safe passing law” there is no reason to expect that things will get better in the near future.  Hopefully, Austin’s City Council will make that right with the new proposed city ordinance.  However, those of you who take long cycling tours outside of the city limits, or who do not live within Austin’s city limits won’t be protected even if the Ordinance passes.  With your rights limited, you need to know how to protect yourself should an accident occur.

Phase I:  The Accident Itself

            #1.  Most cyclists I know carry some personal effects with them on their bikes at all times.  Make sure you keep a small notebook or piece of paper, and a pen or pencil.  When an accident occurs between a bicyclist and a motor vehicle, it is likely to draw a greater reaction from witnesses than an accident with two vehicles.  Take the names, addresses, and telephone numbers of anyone who was a witness to the accident.  By the time the police get there many of these people will have already left and the officer will be severely hindered in his investigation.  If you forget to bring one, ask someone at the scene if they have one and if they can take down names and address of people.

            #2    Make sure you wait for the police to arrive and fill out an accident report (do not merely exchange insurance information with the other person).  Give the officer a full account of the accident as it happened.  If you are taken to the hospital before the police arrive then make sure that you contact the local police department and investigating officer to give him or her your version of the accident.  Sometimes they will come directly to the hospital, but that is not a certainty.

            #3    Remember, this is no time to be courteous.  Many people don’t like to blame others and accept partial responsibility for accidents that they didn’t cause.  Any statements you make in that regard will be used against you by the driver’s insurance company when you attempt to get money for your bike, your equipment, or your medical bills. 

Phase II:  Document your Injuries

            #1.   If you do not feel right at the scene of the accident, then have an ambulance take you to the hospital to get checked out.  Not all affects of bodily injury are apparent at the instance the accident takes place.  Also, you may still have a very long ride home and could discover in a few miles that you are unable to continue cycling.

            #2:   Document your injuries.  If you have cuts, bruises, and scrapes, photograph them on the day of the accident, the day after the accident, and at least once a week until they are gone.  Keep copies of all of your medical records and bills, and make sure that you have yourself thoroughly checked out by a trusted physician.

            #3    Don’t fix your bike until you have photographed the damage and had a professional give you an estimate to repair or replace the bicycle.  If you damaged your helmet or gear, you should also photograph those and find the price of comparable replacements.  I know this sounds bizarre, but if your clothes are torn and bloody, don’t wash them, put them in a plastic bag in a safe place. When you are dealing with the other driver’s insurance company (Phase III) they will take you more seriously if you can show them the extent of your injuries.

            #4    Get a copy of the police report.  It may not be available for several days, but contact your local police department and when it is available pick up a copy.  It should only cost a few dollars and can be done in a matter of minutes.

Phase III:  Dealing with the Driver’s Insurance Company

            #1   Don’t speak to anyone until you have consulted an attorney.  There are undoubtedly situations that can be resolved between the cyclist and the insurance company without the involvement of an attorney.  However, most attorneys will provide a free consultation and can advise you how to avoid common pitfalls

            #2   If injuries and damage are substantial, it is best to have representation, rather than settle right away. Sometimes injuries from the accident will not be discovered until weeks or months later and by signing a settlement agreement before that time you may end up having to pay additional medical bills out of your own pocket. If there is any doubt, at least consider speaking to an attorney first before decisions are finalized. 

Jay Paul Warren is an attorney with the firm Howry Breen L.L.P.

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