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Unmarked gutter obstruction.. caused crash -- What to do?(36 posts)

Unmarked gutter obstruction.. caused crash -- What to do?MellowVelo
Oct 5, 2002 6:56 PM
I had a somewhat serious crash today.. I'm not injured badly at all, but there is some fairly extensive bike related damage.. My front wheel is irreparable. My bike computer, a Ciclomaster HAC-4, is destroyed.. my helmet is toast. The crash was caused by an unmarked gap in the gutter.. I don't know how to describe it.. the pictures below would do better. Basically there is a cover to a gas line pipe that is where the curb normally would be.. apparently when the line was installed, no one bothered to finish the curb or put any warning signin there. This gutter is running right off of a bike lane on a fairly major street. I'm not sure what to do here. If I weren't wearing a helmet, I'd probably be in bad shape.. I was going 20+ and hit my head on the pavement hard enough to crack the helmet. I don't want to pass blame for the wreck, I was careless enough to fall into the hole.. and I was riding in the gutter which is a bad idea (although I've been forced into the gutter by cars before while in the bike lane).. but this gap runs right next to the bike lane. I think at the very least a caution sawhorse or sign.. or something needs to be put in place. My wife thinks I should find out who was responsible for either not completing the curb (or whatever) and press charges for damages. Take a look at the pictures.. what should I do.. what would you guys do..

Thanks,
MV
pictureMellowVelo
Oct 5, 2002 6:57 PM
pictureMellowVelo
Oct 5, 2002 7:02 PM
From the opposite angle
picturedesmo
Oct 5, 2002 8:45 PM
Hey, is that Medford? I was riding down there today and recognize the "candidate sign". We have worse holes in GP, and it's takes a year before they fix 'em. Had about six of those exposed gas line things in the middle of the shoulder on our race training loop all summer, man what a pain in a fast group ride!
pictureMellowVelo
Oct 5, 2002 9:13 PM
Not in Medford per se but close enough.. it's in Phoenix at the intersection of Houston and Colver. Nice road.. been down the bike lane many times.. when they repaved it about a year ago they put in the bike lane and the gutter.. and apparently just didn't complete the gutter.. I don't know what purpose having a gutter serves if it just goes into a hole at the gas line.
Only cyclists knowTypeOne
Oct 7, 2002 11:16 AM
I am sorry about your crash and glad you are ok. I share your frustration with hazards on the roadway, particularly those resulting from construction. On my commute home, there are several places in the road that are serious dangers to a bicycle, but the size or depth of the unrepaired patch of road construction wouldn't even be noticeable to a driver. Indents, unfilled holes, raised manhole covers, deep grooves, loose gravel, etc. are dangerous! When I called the city to complain that they needed to repair the road after tearing it apart, the woman on the phone had the attitude that if it's safe for a car, it's good enough. However, a few weeks later portions of the road were fixed up. Whether this is due to my call or not I can't say.
Good luck out there.
re: Unmarked gutter obstruction.. caused crash -- What to do?desmo
Oct 5, 2002 7:17 PM
First off, sorry about your wreck and glad you're alright. As far as cause, a cone would have been nice but you must have not been paying attention at all to ride into something like that. I'm not saying it's right but we have all kinds of "obstructions" like that where I ride and you just have to watch out for them. With that said it does look like it would probably be pretty easy to get the responisable party to pony up for the damages. I'd imagine a good shyster would go nuts on something like that so getting a wheel, helmet, and computer would not be to out of line. Heck, some broad got 28 mil this week because she could not figure out that smoking could cause cancer.
re: Unmarked gutter obstruction.. caused crash -- What to do?MellowVelo
Oct 5, 2002 7:40 PM
I know where you are coming from.. I don't have the slightest clue how I ended up in there. Its not that I don't remember it, but I don't remember seeing it until I fell into it. I'm embarassed about it. It's a bit like driving your car off the road without knowing it. I've ridden the stretch of road before a dozen times and never noticed it. The only thing i can figure is that there is a very bad railroad crossing 20 yard before the obstruction.. I must have been focussed on getting my speed up and just missed the hole. More than anything I feel a warning or sawhorse would be appropriate.
Find out what the rules are regarding signage in that villageKristin
Oct 7, 2002 7:24 AM
I have a friend who is the engineer foreman for city sewage projects all over Chicago. Most villages contract out this kind of work and the placement of signs is dependant on two things: village regulations and the contractors policy.

I do notice some yellow paint in the bike lane that looks like its pointing to the hole. If that falls within the boundaries of the village and contractor regulations, then they are in compliance. You'd have a hard time getting any assistance, but it doesn't hurt to ask. Start by calling the village. You'll probably end up with the engineering department. Ask them who's responsible for that job and find out what signs the village requires for this sort gap. If the job IS contracted AND they did NOT have the signs up that SHOULD have been up, DON'T tell the village. This is your leverage. (The contractor could get into trouble and possibly lose this job or future bids if you reveal this.)

Call the contractor directly and ask to speak to the engineer in charge of the project. These guys are typically diplomatic and good at communicating with residents. Offer to meet him at the site and bring your bike with you. Explain that you didn't see the gap because there wasn't a sign and show him the bike. Make sure you discreetly let him know that you didn't snitch on him to the village. See if he can do anything to help with the repairs, then let him negotiate with his claims department. That's how I would handle it.
Really bad engineering...Brooks
Oct 7, 2002 8:34 AM
Kristin is right, talk to the City Engineer. First of all, a gutter is useless to direct water to stormdrains with a gap like that. If the gas line was already in place before the new surfacing/bike lanes/gutter, the project is not complete. The gas line needs to be moved. Actually it should have been moved as part of the road project. As such, a warning cone or barricade is necessary. The painting on the asphalt (HPG = High Pressure Gas) is just to mark the connection for the utility company. Same is true with fire hydrants. This marking is not meant as a warning for drivers/cyclists. I would say that you have a good case against the City or County that is responsible. Don't be embarrassed, you may not be the only one that has been (or will be) injured because of this.
Hey Brooks, I was wondering if you were gonna weigh in on thisKristin
Oct 7, 2002 10:04 AM
You have experience in city planning/engineering don't you? In a case like this, is the municipality responsible, or the contractor who left the work undone/unmarked? Just curious.
Talked to our City Engineer...Brooks
Oct 7, 2002 3:18 PM
he first hoped it wasn't one of ours! He agreed with the poor engineering, probably not surveyed correctly. In this case (assuming a nearly finished(?) project), the contractor would be responsible to adequately mark the hazard until the curb is replaced. A cone or A-frame barricade should suffice. As curbs are generally the first hard surface to be put in place after compacting the subgrade, this problem should have been known to the contractor and municipality for some time. Easy enough then to change the curb configuration. Harder now with the road down.

A bigger problem is when you need to mill down the road surface because there have been too many overlays over time. All the manholes, meter caps and other utilities in the street have to be lowered first, reeking havoc on cars and bikes. Then, after the milling (always fun to ride on...NOT) the manholes, etc are raised to the finished grade. It is always imperative to watch what's going on in the road!

Brooks
Make that $28 Billion (nm)Raf1
Oct 5, 2002 9:29 PM
One might argue-filtersweep
Oct 6, 2002 10:12 AM
One might argue that this does not affect the LANE, and that the curb is not part of the roadway or bike lane. Typically I'd expect to see a pylon by this sort of thing, since they DO that sort of thing around here- which does imply at least some liability. Technically, while unfortunate, it appears you went out of the bike lane... off the road, so to speak. The cap and pavement appear to be marked with paint.

Would you feel any differently if a cinder block had fallen off a truck and been in the bike lane for an indeterminant about of time and caused a similar crash? Or a fallen small piece of a tree branch... and if flipped into your front spokes and caused an endo (happened to my father- he required all sorts of dental reconstruction).

I don't mean to sound insensitive... I wouldn't be happy about the situation either. But, it appears you are looking for something to blame (as I myself would probably do in your situation ;) ).

For those who can't believe you didn't see it: I cross a railroad track at an unprotected crossing... rode for months without ever seeing a train. I was almost convinced the line was abandoned. In fact, I literally stopped seeing it. One day I about freaked as I heard with whistle as I approached the tracks as the train approached, big as life!
typical..Fredrico
Oct 5, 2002 7:23 PM
of road engineers attitude about bicyclists, "Let the rider beware!" If that were anywhere near where a car would be likely to drive, they would have certainly put up saw horses.

I've seen stuff like this many times, manhole covers raised a couple of inches off the road, or, like the one I wiped out in a few years ago, recessed in holes. The worst, a string of rumble strips along the previously smoothly paved shoulders of an unlimited access federal highway. I wrote a letter to my congressman about that one.

Others might weigh in on this issue, but I think this is a clear instance of a public service not looking out for the safety of the road users, being irresponsible, careless, incompetent, derelict, or however a good lawyer might put it. Public servants need to be accountable when they screw up. Sue the bastards.
re: Unmarked gutter obstruction.. caused crash -- What to do?synapselapse
Oct 5, 2002 7:45 PM
You must take responsibility for your actions. I can't believe that you couldn't see that coming... I feel badly that you've crashed, but it seems to me that the cause of the accident is you. There are lots of things to see and react to on the road and you bear some of the burden for making decisions, and being responsible for their consequences. Be glad you were not seriously injured and move on.

I hope you and your bike are back in riding shape soon.
re: Unmarked gutter obstruction.. caused crash -- What to do?MellowVelo
Oct 5, 2002 7:54 PM
I didn't say anything to the contrary, I'm just trying to get some idea of what the appropriate action is.. if any..
re: Unmarked gutter obstruction.. caused crash -- What to do?R-I-D-E
Oct 5, 2002 8:04 PM
Sorry for the crash. I am not sure if I would do anything other than chalk it up to experience. Yes perhaps they should have marked the obstruction. But you were riding in the gutter...if only for a brief moment.

Good luckl and just be a smarter rider because of it.

RIDE
re: Unmarked gutter obstruction.. caused crash -- What to do?synapselapse
Oct 5, 2002 8:07 PM
Things to do:

1. Kiss your wife and be glad you're not hurt.

2. Avoid hitting the hole again. ;)

3. Get some bright orange spray paint and paint "HOLE" on the road 5m before the hole.

Things NOT to do:

1. Sue.

2. Compain about it.

3. Get angry.

Things you MIGHT do:

1. Find out who was working in the area (there may have been more than one contractor involved, and demonstrating whose responsibilty it was to mark the obstruction may be difficult). Tell them what happened to you, and explain to them why it is important to appropriately mark things like this.
Excellent advise, synapselapse . I like your attitude (nm)Psalm 147-10_11
Oct 7, 2002 6:51 AM
re: Unmarked gutter obstruction.. caused crash -- What to do?MasterBlaster
Oct 5, 2002 8:25 PM
Glad your o.k. My question is what were you doing riding in the gutter and not on the nice paved way? I do not know if you can sue anyone. It would be like hitting a pothole while driving your car damaging it (your car) and you trying to sue the city to pay for repairs. Good luck!
Go for it.Starliner
Oct 5, 2002 9:04 PM
That hole is an accident waiting to happen, and it happened with you. I would argue that the gutter is an extension of the bike lane, and as such, a hazard such as this pit is dangerous. The powers-that-be should have been responible and either finish the job or mark it off with cones or a barricade to warn unwary cyclists (and cars which might be pulling over to the curb for various reasons). They were not, and should be obliged to pay for your injuries and bike damage.

Why not contact your insurance company to see what they can do for you. If nothing, then I'd get some legal advice and prepare to sue for damages, with the option of settling out of court for your expenses.
Great idea! Then the contractor's insurance company can pay...NJRoad
Oct 6, 2002 8:16 AM
and all of our rates will go up.

What many people fail to realize is that the insurance company's, like a bookie, almost never lose. If they take a hit they'll make it up by raising rates for everyone.

Report it to the municipality and follow up on your report. In NYC the city is not responsible unless they've been advised of the hazard.

Then find out who the contractor was, it's public information, call them up, tell them what happened, give them a reasonable estimate for damage, tell them you've reported it to the municipality, be unemotional and reasonable. You may be surprised.
re: Unmarked gutter obstruction.. caused crash -- What to do?Raf1
Oct 5, 2002 9:28 PM
I just crashed myself as well and it was because of a huge nasty seam between slabs of asphalt. I am ok and other than bunch of lost skin and soreness. My head hit pavement as well but the helmet absorbed it nicely (people, wear helmets!). The bike is ok other than cosmetic damage to my Campy carbon lever :(

If I were seriously hurt I'd sue the city (of Plano, TX btw) over that. This accident happened while changing lanes which cannot be avoided due to turn only lane.

Glad you're ok but if I were you I'd definitely pursue legal action.
re: Unmarked gutter obstruction.. caused crash -- What to do?legs
Oct 5, 2002 9:59 PM
sorry that happened.. but you know, you have to be vigilant and its your responsibility to know what's in front of you. its the kind of mistake you dont make twice.
also... stay out of the gutter.
gutters tend to have debris and this kind of stuff.. take the bike lane or put yourself enough into traffic that they have to drive around you.

thank your lucky stars that your lack of focus didnt kill you or hurt anybody riding behind you.
bikes are dangerous, your safety is up to you.
it was your fault.
At least do this . . .Andy
Oct 5, 2002 10:20 PM
Find out who is responsible for this missing section of gutter and have them mark it well so this does not happen to someone else. This thread will probably turn into a poll of people who think it was your fault and people who think it was the city's fault. What really matters is that you are OK and that you are aware of a possible danger to others. You can prevent this from happening to someone else by getting this marked. If you have to, send the responsible party a certified letter concerning the issue. If they do nothing about it and someone else crashes... the next victim will have some teeth to do something.
re: What to do?Leroy
Oct 6, 2002 5:27 AM
What contributed to the cause of the crash was your improper lookout. How much is an issue in the claim. The city or the builder probably had a duty to warn of the condition, too, and did not. Even if you took action against the city or contractor [I don't know what state this is and the laws differ] for not marking the site with warning stantions, you still have a problem of proof with your inattention. If comparative negligence applies you may have a 'push' bet. IMHC[curbstone]Opinion, you should turn it over to your insurance company, if any. That may be the best way to avoid the legal pitfalls - and that's what insurance is for. The recovery might not be as much, but it's certain, if you are covered, and no legal fees. The insurer goes after the negligent other party later to minimize its loss. You get a new bike and helmet right away without all the redtape in court. If you are not insured, or if the accident is not covered, seek legal advice applicable to your area to see if you have a cause of action. Just because you were partly at fault does not necessarily mean you do not have a successful claim, but that is probably the way to bet. I'd at least find out. Also act promptly since there may be strict time limits on recoveries in your jurisdiction. Good luck, change your route from now on, and watch the road!

Dave Loving
what to do...?merckx56
Oct 6, 2002 6:55 AM
how about paying a little closer attention when riding! i can see if it was dusk or raining and the gap had been hidden a bit, but jeez...ride with your head up, looking down the road. What if it had been a broken down car sitting there? Would it have been the driver's fault that you crashed into the back of a stationary object?
and you say there was a bike lane? if you hit a gap that big, and you weren't forced into it by another rider, it's pretty much your fault.
I hate to be the devil's avocate here, but to quote Forrest
Gump, "Stupid is as stupid does!"
Take it as a hard lesson and pay better attention. If you hit that, you'd likely get killed commuting in traffic!
Is that a state road??High Gear
Oct 6, 2002 7:17 AM
I would contact the state highway department if so, or the town if a town road. They should cover the damages you had,they made an unsafe, unmarked spot that you happened to travel over. I got stuck going down a state road that was being crack filled with a new product that didn't dry for dasys and the stuff covered my bike and clothes. I called the highway department to complain and they said they would cover any clothes that couldn't be washed out. Everything turned out ok, but it's nice that they had the insurance to cover a situation like that. Some people on this forum say you should have watched the path you took but I have hit things in the road that I should have seen a mile away, sometimes there are distractions like traffic or girls that make us take our eye off the road. Good Luck
Not so simple...jtolleson
Oct 6, 2002 8:36 AM
Road design and maintenance is usually covered by governmental immunity statutes in most jurisdictions; I'd be skeptical that there's public entity liability here.

Sometimes, crummy things happen and no one writes you a check. Don't mean to sound like a hardliner, but I've spent over 40 weeks on crutches over the past 4 years because of a wreck caused by bad pavement coming down Mt. Evans/Squaw Pass. I never once thought about finding someone or something to "blame" because crashing is a hazard of riding.

Although this missing chunk of gutter makes for a dramatic visual, we all deal with dangerous defects in riding surfaces every single day.
As much as it was your fault... it wasn'tPODIUMBOUNDdotCA
Oct 6, 2002 8:07 AM
As much as it was your fault for hitting that in a lot of ways it wasn't. The city/state has a civic duty to mark such an obstacle that they created... every other gutter construction job like that I've EVER seen including last night they had the saw horses on even though its just the curb in an area where people normally never should really drive. If you have insurance on your bike even for only theft go to the insurance company and explain that you hit an unmarked construction point in the curb causing you to crash which made whatever damage to your bike and anything you were wearing. Then also call the city/state or whoever owns that road and ask them what they are willing to do. All else fails consult a lawyer... I think you do have the upper hand and hope you win if all your going after is replacement cost of your wheel (possibly bike if the frame or fork is outta alignment) + clothes + helmet, etc.

Good luck and keep us posted!
Nick
PodiumBound.ca
State laws vary, so there is no way to be sure without consultinbill
Oct 6, 2002 8:56 AM
a lawyer.
Here are your issues:
Sovereign immunity. Can't sue the state/city/county for all sorts of things UNLESS they have waived their immunity within certain limitations. Many states have such waiver laws, but typically they require special notice within a certain period of time, which can be very short (I haven't heard of less than six months, but you never know).
Who owns the gutter? Not always an easy question. Who left it that way? Even if you find that out, there may be others vicariously liable. These questions can be difficult to answer, but their answer may help avoid the sovereign immunity thing.
Contributory/comparative negligence. They can provide very different results, but the idea is the same -- if your negligence contributed to the injury, which, let's face it, it did, your recovery may be limited or even barred.
Glad you're not hurt worse. My entirely irresponsible, immediate reaction is that, for the damages you sustained, it's not worth the trouble to pursue.
What if....Starliner
Oct 6, 2002 4:07 PM
... a gust of wind from a passing semi blew him off course enough to veer and fall into the pit from the bike lane? This hole is a man-made hazard, leftover from a job clearly not completed, a hazard which could easily have been minimized with a simple steel plate temporarily covering the hole.

As far as saying he himself was negligent to fall into the pit, is not a neighbor who, while walking up your walkway to your door, trips over a skate your child left in the middle of the walkway, falls and breaks an arm similarly negligent for not having seen the skate? Would the neighbor therefore have limited or no recourse? Just wondering.
re: just wondering., yes I believe that the neighbor would havebill
Oct 7, 2002 6:50 AM
limited or no recourse. Of course, these issues are ultimately decided by a jury, and juries are known to do some wacky things, so you could never say that the case has no value.
The sidewalk/skateboard case, however, is probably not a case that I would take. Never say never, but probably not.
If wind blew the guy into the hole, well, that's not negligence. The defense would show the pictures, making a case in the first instance, and the plaintiff then would have the burden of coming forward with the neutralizing evidence. If he's credible, plaintiff should win, although in Virginia (I think in Virginia; I'm embarrassed to say that I'm not sure exactly where the case came from) there is a very disturbing case which says that the duty of care extends to foreseeable harm to cars, not to bicycles, so that if a cyclist injures himself on something that poses no foreseeable risk to a car, it's not negligent.
I don't make the rules.
talk to a lawyer, you got nothing to lose,elviento
Oct 7, 2002 6:20 AM
He gets a third of the damage award, so he will work hard for it.

It's hard to describe a whole body of law here, but it certainly looks like a winnable case.
What I would doDougSloan
Oct 7, 2002 12:03 PM
Often states have waived immunity for "dangerous and defective conditions of public property." If so, you should at least make a claim with the appropriate entity, the city, county, or state. The time to make a claim may be barred if you don't do it very soon.

If a private contractor built or modified the road, the contractor may have liability. You either just ask a city engineer, if this is in a City, or do a public records request for the information (like a Freedom of Information Act request). The immunity likely does not extend to the contractor. Again, the time to make a claim may be limited.

At a miniumum, write a letter and enclose pictures to the City or highway department, and describe what happened. This may cause them to fix it, and save another cyclists from having the same thing happen.

There are illegitimate and legitimate claims to be made, and damages can be reasonable or excessive. When someone else carelessly contributes to destroying your property or harming you, that you have a legitimate claim. If you merely ask for reasonable damages, that is entirely appropriate. Further, making the claim might cause the wrongdoer to be more careful in the future, which might help the next guy.

Doug