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Created on Tuesday, 20 April 2010 16:42

Last Updated on Friday, 28 December 2012 19:01

Mutual Courtesy on Adjoining Sidewalks and Bike Ways

When riding on a bike way painted on a sidewalk, you have the right and duty to use this aisle but do also have the right to speed through it? The Federal Court of Justice gave us an answer on November 4, 2008 (re VI ZR 171/07).

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Speedy sued a pedestrian for material and immaterial damages. He was riding his bike on a red painted bike way as he neared a bus stop. A pedestrian was standing there with her back to Speedy and was chatting with other persons, who were standing close by the bike way. As he was about 10 m (approx. 11 yds.) away, he starting ringing his bell to make them aware of his approach. He did not reduce his speed. While Speedy was approaching, the pedestrian swayed towards the bike way and only slightly touched Speedy. This forced Speedy to make a sudden stop. His front wheel blocked and he flew over his handle bar.

Of course Speedy was not wearing a helmet so he suffered a shock, scratches on the forehead, laceration on his right ear from his glasses, as well as hematomas on his shoulders, bruise of the rotatory collar bone, and finally a bruised left index finger. Prior to the accident, Speedy was already fully deaf on his right ear and had a hearing disability on his left ear. He applied for € 5,000 on damages to compensate for his pain and suffering (§251 I 1 BGB) and damages in kind amounting to € 120.67 (broken glasses, etc.). The court considered that Speedy had a contributory responsibility in terms of §254 BGB of 70%, so that he was adjucated for € 300 on pain and suffering (Schmerzensgeld) and material damages of € 36.20.

The pedestrian argued that Speedy overreacted as he abruptly stopped to avoid hitting her. The court did not accept that defense because he understandably reacted more than what was objectively necessary. Generally, §1 StVO demands that everybody avoids endangering others and in this relationship the more dangerous the vehicle the more attention the driver has to give to weaker participants. However, in this case, the pedestrian all of sudden jerked into his way after standing with her back towards the bike way - disregarding his warnings. He was therefore not required to reduce his speed from 15 km/hr (about 10 mph). Just because he passed a area typically with heavy traffic, i.e. a bus stop, Speedy had no reason to slow down because after having watched out for jaywalkers, the defendant showed no sign of crossing his way. Speedy had reason to believe that she would have heard his warnings and would stay out of his way.

Speedy was also not to be blamed that he did not wear a helmet. First of all, he did not belong to such cyclists that are notoriously endangered. These persons are required to wear a head protection. Anyhow, his injuries would not have been prevented even had he worn a helmet. Generally, adults are not required to wear helmets when riding a bike. In other words, under normal circumstances this will not lead to a contributory responsibility (§254 BGB).

Remark:

The court set a new precedence considering the duty to wear bike helmets. First of all, bike riders are to be differentiated between "normal" ones, who use their bike as a normal means of transportation in traffic without having athletic ambitions and racing cyclists. Only the latter are expected to wear a helmet and will have a degree of joint liability when injured without wearing a helmet. LG2G nevertheless believes that even "normal cyclists" ought to wear helmets! € 60 for a helmet is worth the protection for one's bullhead.