16 Comments

At a certain point in life, you need to be your own mommy.

If you can’t be responsible for yourself at 74, you shouldn’t be out riding a bike on the streets of New York; you should be in a nice facility where kind nursies will come around to help you fasten your diaper in the morning.

Won’t You Be My Nanny State?

An elderly Citi Bike rider is blaming his injuries in a crash on the city for not making helmets mandatory for the NYC bike-sharing program…

While I still think that it is the rider’s responsibility, this suit is actually a bit subtler than it seems. The argument is not simply that the city should have forced him to use a helmet. There is a second argument, that by failing to make helmets available with the bicycles, the city actually discouraged him from using a helmet. That has some validity to it insofar as a person who needs to borrow a bicycle is not likely to have his or her own helmet available. And according to the article, other similar services do offer helmets, so it isn’t as if nobody had thought of this. It may well even be an industry standard to offer them.

In any case, $60 million seems ridiculous for the injuries this guy suffered.

So did the diligent “elderly rider” ever actually request a helmet?

If so, and there was none offered, why did he get on the bike, anyway?

Or, if not, just how concerned to wear a helmet was he, anyway?

“His lawyer, Michael O’ Donnell, said the city can’t blame Corwin for not wearing one after saying it’s less dangerous than driving or crossing a street.”

Nice verbal jujitsu–you bar-card-toting weasel–even assuming bike riding is safer, it is not without risk and your client should probably have worn a helmet. And, he’s the guy who hit the wheel stop, causing the accident.

Besides aren’t helmets most optimally professionally fitted to one rider? I bet there are conscious risk management reasons the City failed to offer helmets in the first place since an improperly fitted helmet might be worse than none at all. And, a rider can’t find a place to buy his or her own helmet in Manhattan? Please.

In reply to Bill, no, it is not an industry standard. I have seen these city-owned bicycles in multiple places on the west coast and none offered helmets for rent. It may well be done, but it is not standard.

As an aside, helmets are encouraged but not required where I live. I encourage my 11 year old to wear a helmet, and in fact, full body armor because the knucklehead does not protect his head and other vitals when he falls. My other sons have a good sense of self preservation; they will stick out an arm to take the fall. I tell them that I don’t care if they wear a helmet or not, but they should wear riding gloves. Not that they listen to me. They all wear helmets and no other protection. Yes, we own the other protection, but it is accumulating cobwebs.

Providing helmets would allow a new cause of action against both city and helmet manufacturer e.g., helmet didn’t fit properly, chinstrap fastener sprang open, helmet provided inadequate impact protection, etc.
This was a foolish thing for the city to get involved in.
The NY city streets are an unsafe environment for bicyclists, that is all there is to it.

@Mike- He didn’t have his “accident” (if that is the proper description for the event) on a NYC street. He alleges (again, since this is his 2d action) that he ran into the concrete barrier at the end of the area where the bikes are parked. The barrier is similar to car-stop barriers in many parking lots and garages, and designed to stop a car or truck. It keeps the bikers and bikes safe from traffic on the street. Unlike the barrier in a parking lot, however, it is painted bright day-glow orange and surrounded by posts that are about 3 feet tall. Cases like this show why the “open and obvious” doctrine should be re-instituted for premises liability suits, and the English Rule adopted for all tort suits. (I know,– fat chance of either of those coming to pass).

Mr. Wfjag: appreciate the comment…but my closing remark was directed at the lack of wisdom behind the overall program, not this particular incident.
I do agree that reforms are unlikely. The plaintiff’s bar just has too much power in NY. In fact, one of the most powerful politicians in the state (not Andrew) has an “of counsel” relationship with a big plaintiff’s firm. A lady I know consulted them some years ago on a drug case (may have been Viox?) and they were touting their relationship with the politician as a reason why she should retain the firm.

Several of you seem to have missed my statement that I do not agree with this suit but was merely pointing out that the claims are not quite what the headline suggests.

John Fembup does not understand how the program works. There is no human being present to ask for a helmet. You buy a pass that lets you use the service, then use a code to unlock a bicycle from a kiosk.

It is true that the plaintiff could have bought a helmet, but that really only makes sense if one is a regular cyclist. Many people using such a service will not be.

To my knowledge bicycle helmets are rarely professionally fitted. Bicycle shops will help customers with it, but helmets come with instructions aimed at the consumer and most people I know make their own adjustments. Some helmets are fitted on a one-time basis, but most allow various adjustments and can be used by more than one person.

Personally, I prefer not to wear a helmet in most circumstances as I find them distracting and unpleasant to wear.

Poser, I asked two questions. You responded to one.

Here’s the other. If not having a helmet were so important to the elderly rider, he had a choice not to rent the bike.

He rented anyway.

I think he assumed liability. That’s my point.

Regardless, the city my offer him a few thousand to go away. If he won’t go away, we may eventually find out how a real judge finds.

The Seattle Bikeshare program, Pronto, does offer helmets along with the bikes and has a whole mechanism where the helmets are collected, cleaned, and wrapped in plastic between uses. This was one because the law there (not sure if its just Seattle, the county, or all of Washington) actually requires helmets for cyclists of all ages, not just children like in most states. They also give a coupon for a free helmet to their annual members. The helmet vending machines and the labor required to collect, clean, and distribute helmets added significantly to the cost of the system.

I know Boston has experimented with helmet vending machines as well. Most bikeshare systems just recommend that riders bring their own helmet, and many offer a coupon good toward a few bucks off a helmet at local bike shops to their annual members. Bay Area Bike Share in San Francisco also has a deal for fairly inexpensive helmet rentals with a downtown bike rental operator.

All told, while there have been some accidents, there have been very few serious incidents with bikeshare systems worldwide. Barcelona (where, like in most European countries, helmets are uncommon for urban cycling) did a study of its Bicing system that concluded that the environmental, fitness, traffic, etc… benefits far exceeded the risks on a systemwide basis.

Personally, I’ll bring my own helmet if I commute by bikeshare, but I don’t sweat it if I’m using it for a trip across downtown when I don’t have a helmet with me.

Interestingly, the initial news reports of this case deal with the fact that the 6″ wheelstop was difficult to see as it blended with the roadway and wasn’t painted, as is common elsewhere.

I’m not sure where this “sued because they didn’t give him a helmet” stuff came from, but that argument doesn’t appear in initial reports:

http://www.nydailynews.com/new-york/man-sues-nyc-citi-bike-15-million-article-1.1704829

Right, it didn’t appear in the initial stories because he didn’t make that argument at first. Instead (as I understand it) it is an argument brought in more recently on his behalf and which triggered a new round of coverage.

I downloaded the complaint and skimmed it. It’s very long at 60 pages.

But on a skim, it seems that they argue the city went to great lengths to say that riding without a helmet was safe enough, and that this was a policy decision.

Having proclaimed it safe, therefore, the city can’t then turn around and hypocritically claim that the plaintiff was negligent for not wearing a helmet.

In other words, this isn’t a stand-alone claim against the city as the popular press has claimed, but an attack on the affirmative defense of contributory negligence.

The heart of the lawsuit is the failure to put bright warning stripes on the wheelstops, causing an optical illusion as it blends into the background of the street.

A great deal of thought and analysis went into that amended complaint to defeat the contributory negligence affirmative defense. Whether it works, however, is another story.

In Turk’s linked article it is interesting that Corwin’s lawyer released a photo of the curb stop that I suspect would be inadmissible under ER 407.

What is the function of the curb stop anyway? I had assumed it was a normal one in a parking lot among many. It looks out of place.