Late Sunday night, a bicyclist was hit and killed by a driver in southwest Charlotte. The Charlotte Observer reports that both the driver and the bicyclist were traveling south on South Tryon Street, when the bicyclist was struck by the driver’s Jeep. The bicyclist hit the Jeep’s windshield and was then thrown to the ground. He was pronounced dead at the scene of the accident. The driver left the scene of the accident and called 911 from his home, but later returned voluntarily to the scene. This morning, he was charged with involuntary manslaughter, felony hit and run, and driving while impaired. Police suspect that the bicyclist might also have been impaired.
This incident raises a number of questions about how bicycles and cars share the road and the rules governing each. The first thing to understand is that, under north carolina law, bicycles are considered vehicles. G.S. 20-4.01(49) states that a vehicle is
Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon fixed rails or tracks; provided, that for the purposes of this Chapter bicycles shall be deemed vehicles and every rider of a bicycle upon a highway shall be subject to the provisions of this Chapter applicable to the driver of a vehicle except those which by their nature can have no application.
Therefore, bicyclists must use handsignals when turning (G.S. 20-154), drive on the right side of the road (G.S. 20-146), yield to pedestrians at crosswalks (G.S. 20-173), and have lamps on their bicycles when used at night (G.S. 20-129). Also, a bicyclist who drives his bicycle on a public street while impaired does so in violation of the driving while impaired statute (G.S. 20-138.1).
So now we know that bicycles and cars are basically considered equal on the road. What happens when cars and bicycles meet? If a car driver comes up behind a bicyclist on a road, the bicyclist has the same rights as any slow-moving vehicle would, and the car driver must pass the bicyclist in the same way. G.S. 20-149(a) states that “The driver of any such vehicle overtaking another vehicle proceeding in the same direction shall pass at least two feet to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.” If the car driver is passing a bicyclist on a two-lane road, the driver must wait until the left lane is free from traffic and he has an unobstructed view of the road ahead (G.S. 20-150). The bicyclist is required to “give way to the right in favor of the overtaking vehicle” (G.S. 20-149(b)).
Now let’s use this information to look at the incident from Sunday night. Obviously, punishment assigned or money awarded will not take the place of a loved one lost, but how would the deceased bicyclist’s loved ones go about collecting money to deal with things like funeral costs and medical bills? Let’s assume that the driver of the car did not give the bicyclist enough room when he was passing and hit him as a result. The car driver would be negligent per se because North Carolina law requires him to “pass at least two feet to the left” of the bicycle. His failure to do so caused him to hit and kill the bicyclist.
What if we add another assumption that the bicyclist did not have the required rear light on his bicycle? How would this change our analysis? The absence of a rear light would be negligence per se on the part of the bicyclist since G.S. 20-129(e) requires him to have “a reflex mirror or lamp on the rear, exhibiting a red light visible under [normal atmospheric] conditions from a distance of at least 200 feet to the rear of such bicycle, when used at night.” His failure to do so was a contributing cause of the accident and his injuries.
The bicyclist’s contributory negligence would be a defense to a claim against the car driver’s negligence. In most states, your own negligence will not keep you from receiving damages, but it might reduce the damages you receive. North Carolina, however, is one of a handful of states that employs a stricter standard called contributory negligence. Generally, if you are found to be contributorily negligent, you are barred from receiving any damages. Therefore, the bicyclist’s contributory negligence would bar him from receiving damages in that scenario.
One exception to the rule of contributory negligence is if the defendant’s conduct is “willful or wanton.” If the defendant’s conduct is willful or wanton, then a plaintiff’s contributory negligence does not bar a plaintiff from receiving damages. North Carolina courts have determined in motor vehicle cases that:
Our case law as developed to this point reflects that the gross negligence issue has been confined to circumstances where at least one of three rather dynamic factors is present: (1) defendant is intoxicated, (2) defendant is driving at excessive speeds, or (3) defendant is engaged in a racing.
If we go back to the facts stated in the Charlotte Observer article, we know that the car driver was charged with driving while impaired, so he would meet one of the factors for gross negligence. In that situation, the bicyclist’s mere negligence would not bar him from recovering for injuries caused by the car driver’s gross negligence.
However, the article also stated that police suspected that the bicyclist was impaired. It is likely that impaired driving by a bicyclist would also be considered gross negligence, as North Carolina court have determined in motor vehicle cases. Although the bicyclist’s contributory negligence is not a defense to the car driver’s gross negligence, the bicyclist’s gross contributory negligence could be. In that case, the bicyclist’s loved ones would be barred from receiving any damages.
If you have been injured in an accident, it is important to look at all the facts and contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450 to discuss your options.