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Who is liable for your bicycle accident injury?
Wisconsin is a great place to bike.
Just ask a cyclist who has pedaled their way along thousands of miles of road or multi-use trails. The Badger State is home to the nation’s first railroad-converted trail, which coasts through historic tunnels and 5 communities. There are also more than 200 miles of gravel routes through the Chequamegon-Nicolet National Forest.
Cities like Madison have been designated as Bicycle Friendly Communities, and Sparta is known as the “Bicycling Capital of America” according to Travel Wisconsin. You can also ride U.S. Route 30/230 across the entire state — all 269 miles! — from Lake Michigan in Milwaukee to just north of La Crosse along the Mississippi River.
Regardless of all of these options for recreational “adventure” cycling, there are still many people who are bicycling as their commute to work, as casual cyclists in their own neighborhoods and communities, or as transportation for errands and short-distance trips near their homes or workplaces.
Wisconsin bike accident statistics
While biking is fun, environmentally friendly, and healthy, it can also be dangerous. Many bike accidents result in serious injuries and death.
Here’s a look at injuries and fatalities resulting from Wisconsin bike accidents in recent years:
Looking more closely at the numbers, here’s the average over the period 2015-2020 for each of these categories of accidents:
|Wisconsin bike accidents||Average (2015-2019)|
|Serious injuries to bicyclists||83|
Liability for a bike accident
Wisconsin is an at-fault liability state, which means the person who causes an accident is responsible for the costs related to the other person’s injuries.
Types of bike accident lawsuits
Most of us probably think first about car-bike collisions with regard to bike injuries and accidents and that’s a valid concern. Lots of Wisconsin bike injuries are because a vehicle hit a bicyclist (or vice versa).
But there are other types of accidents that happen, too.
There are 2 common types of bicycle accident lawsuits:
- Premises liability lawsuits
- Car accidents (which would include collisions with buses, trucks, or other road users)
Premises liability lawsuits for Wisconsin bike accidents
A premises liability claim is for an injury that happened because of a hazardous condition on property. For example, you could get hurt because your bike hit a pothole or other hazard in the road, the traffic lights or signals were obscured and you rode off the roadway, or you collided with a pedestrian or stationary object.
In order to file a lawsuit, the accident has to be because the person or agency in charge of maintaining the property was negligent, and that negligence was the cause of your injury. In other words, if you fall off your bike because you lost your balance, or if you went off the road and hit a tree because you weren’t paying attention, that’s not someone else’s fault. It might not be your fault either, per se, but it could be a pure accident.
However, if you lost your balance because there was slick sand dumped in a parking lot that didn’t belong there and you slid, that could be negligence on the part of the property owner (provided the parking lot was a place where you were legally permitted to be and permitted to ride a bike).
A potentially complicating factor for a premises liability lawsuit for a bike injury is if the entity that maintains the property is a government agency. If you’re riding your bike on a public road or trail, it’s maintained by a government agency. In such cases, the challenge could be figuring out which agency or municipality is responsible. Some roads are maintained by the state government, others by county or municipality governments.
Once you’ve learned who is responsible for the area, you then have 4 months to file a claim against the appropriate government agency. You’ll also need to provide notice to the state attorney general that you intend to file a lawsuit, and that needs to be done within 120 days from the date of your injury.
Liability for a bike-car collision
In most instances of a crash involving a car and a bicyclist, the bicyclist ends up with more serious injuries than the driver. As we know, the driver or any vehicle occupant is more protected because they’re contained within a vehicle that’s designed to absorb impact. They also could be wearing a seatbelt and their airbags could deploy if it’s a serious accident.
By contrast, the bicyclist can easily be thrown from the bike and has no protection (other than their helmet). And, of course, there’s no contest between the size, weight, and usually speed of a car as compared to a bike.
Because the bicyclist tends to bear the brunt of physical injuries, sometimes there’s a bias that the car driver is always liable or at fault for a crash, but that’s not necessarily true.
The bicyclist can be liable, too.
There are plenty of ways that a bicyclist can cause an accident — for instance, if they turn without using proper hand signals, fail to stop at a red light or stop sign, are texting or using their phone while riding, or traveling at a high enough speed that they can’t stop fast enough if they need to.
If the driver is at fault for the accident, the bicyclist can recover compensation in a few ways:
- If the bicyclist has their own insurance, they can file a claim with their own insurance company. Their insurance will likely pursue a subrogation claim against the at-fault driver’s policy.
- File a third-party claim directly with the at-fault driver’s insurance carrier.
- Settle privately with the other driver (i.e. “out of pocket,”, instead of using insurance), which means the driver would directly pay the amount required to cover your injury-related expenses.
- File a personal injury lawsuit.
Modified comparative fault (51% rule) in Wisconsin
Each state follows 1 of 4 methods for determining how much is awarded in damages if a plaintiff (the injured person) shares a portion of fault for the accident. In Wisconsin, if the plaintiff is 51% or more liable for the accident, they cannot recover any damages.
If a plaintiff is partially responsible for the accident, their damage award would be reduced by the amount for which they are at fault.
Here’s an example of how Wisconsin’s modified comparative fault rule might work in a bicycle accident:
Bicyclist Jed was riding his bike on a quiet road in Madison in the early morning hours, just before sunrise.
Driver Leo was approaching from the rear and driving cautiously. However, just as he was within about 50 feet from Jed, Leo’s phone buzzed and he took his eyes off the road for a moment to see his phone notification.
Jed was riding close to the shoulder, but was still in Leo’s path. Leo hadn’t seen Jed before he took his eyes off the road, and when he looked up again, he saw the bicyclist but it was too late to stop or swerve to avoid hitting him. Jed saw the car’s lights when they were immediately behind him but it was also too late for him to avoid being hit. Leo’s car hit Jed’s rear tire enough that Jed’s bike veered off the road and he was injured when he hit a tree.
While it would seem obvious that Leo was at fault for the accident and Jed’s injuries, there was one detail that later came out at the personal injury lawsuit trial... Jed’s bike was not equipped with the correct lights and reflectors, as required by Wisconsin state law.
Wisconsin statute §347.489(1) says that a bicycle must have a red reflector on the rear that is visible from 50 to 500 feet away. If there is no reflector, the bike must have a lamp with a steady or flashing red light.
The jury decided that although Leo caused the accident, Jed was partially responsible. If he had the proper lighting on his bicycle as required by law, then Leo would have been able to see the bike sooner and might have been able to avoid a crash.
In the scenario described above, Jed would not recover any damages for his injuries if he is 51% liable or more for the accident. If he is 50% liable or less, he can recover damages that would be reduced according to his percentage of fault.
Wisconsin bicycling laws and requirements
In addition to staying safe while bicycling, following Wisconsin bike laws and road rules also protects you from being liable in a crash.
Here are some of the applicable Wisconsin rules:
- Ride in the same direction as traffic and stay at least 3 feet from parked cars, curbs, or other objects. Ride in the center of the lane if the lane is too narrow for a bike and a car to ride alongside each other.
- Sidewalk riding is usually illegal unless the municipality has a specific ordinance that permits a cyclist to do so.
- Always wear a bicycle helmet in order to protect you from serious head injuries in a crash. There is not a helmet law in Wisconsin, but you might face bias by the insurance company or the courts if you’re injured in a crash and were not wearing a helmet.
- Wisconsin has a 3-foot safe passing law. A motorist must allow 3 feet of passing space between their vehicle and the bicyclist. A driver may cross a double yellow line in order to pass a person riding a bicycle.
- Cyclists may ride 2 abreast if they are not impeding the normal flow of traffic.
- Wisconsin’s texting law applies to drivers but not bicyclists. However, it’s unsafe and not recommended to text while you bike. The same applies to biking while under the influence of alcohol — it’s not specifically illegal, but also not safe.
- Bicyclists are required to use standard hand signals if other traffic would be affected by their movements.
Common causes of Wisconsin bike accident injuries
Although some accidents are outside of the bicyclist’s control, there are ways to keep yourself safer on the roads.
Here’s a look at the 5 most common causes of bike accidents:
1. Distracted driving/bicycling
Distracted bicycling is a big problem, just like distracted driving.
We’ve all become so attached to our phones and devices that the temptation to use electronics, even while biking, is a strong one. It’s always dangerous to look at your phone or device while cycling because taking your eyes (and mind) off the road and any oncoming traffic, even for a moment, can be a tragic decision.
Like drivers, cyclists should ride in a way that allows them to be in control of their bikes at all times. A safe speed will depend on road conditions, weather, amount of travel, speed of vehicle traffic, and other factors.
3. Riding too close to traffic
Although it’s the driver’s responsibility to maintain a 3-foot safe passing distance when they approach a bicyclist, sometimes it’s the cyclist who approaches from the rear. You should always make it a point to leave plenty of room between you and the nearest vehicle.
4. Intersections and lane merges
Bicyclists should follow the road rules just like motorists. Intersections, lane merges, and other situations where cars are turning or traveling outside of a single lane can be dangerous. It’s important for cyclists to be aware of not only where they’re going, but what the motorists around them are doing, too.
5. Sidewalks, parking lots and driveways
Some drivers (and bicyclists) think that because cars tend to move more slowly in parking lots or when backing in or out of a driveway, those areas aren’t dangerous. But because these scenarios often involve backing up and unexpected movement, they can present risks.
What to do after a bike accident in Wisconsin
If you’re able to do so, take these steps after a bike accident:
- Call 911. A police report is an important piece of evidence. Even if your injuries are minor (or you feel uninjured), you’re entitled to (and should get) a police report at the scene.
- Obtain information from the driver. Just like you would after any motor vehicle accident, be sure to write down the driver’s name, address, phone number, email, insurance information, license plate number, and driver’s license number. If you have your phone with you, it’s a good idea to take photos of these documents as well in case you copy down the information incorrectly.
- Gather witness information. Any person who observed any part of the accident (including events leading up to it or following) can be valuable as a witness. Be sure to write down these people’s names and contact information.
Accident Report Form
Sample post-accident report form to keep in your glove box - fill out at the scene or as soon as you can after a car accident
Download in PDF format
- Take note of the conditions at the scene. Weather, road conditions, traffic patterns, signals, and other things could all be factors in a bike accident. The police report should include some of this information, but you should take your own notes and pictures, too.
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format
- Get a medical examination. Whether you think you’re injured or not, go to a hospital, your primary physician, or an urgent care center for a medical exam. Some symptoms might not appear until days or weeks after an accident. Full documentation by a medical provider can be crucial to your legal claim. If your condition isn’t documented, it can be hard to prove that your injuries were caused by the bike accident.
- Call a Wisconsin bike accident lawyer. An experienced bike accident lawyer is trained and experienced in helping you avoid liability and recover damages.
If you have injuries that weren’t covered by insurance, or that are severe and will require future medical treatment or have ongoing expenses, it’s important to consult with a lawyer before accepting an insurance settlement. Your lawyer will assess the full value of your claim and costs of your injuries in order for you to recover the correct amount to cover your expenses.
See our guide Choosing a personal injury attorney.