Victim and Family Resources

Context of our information is important to help you understand why you need to
protect yourself and from what.

• Virginia is a “Fault” state. If you’re involved in a collision with an automobile driver, you must prove that the other driver was negligent. That means the other driver did something they were not supposed to do or failed to do something they were obligated to do, making them legally responsible for causing injury.
• Virginia also is one of the few remaining states with a doctrine called “Contributory Negligence”. This is a harsh doctrine of law that says that if you, as the injured person, are at all responsible for causing or contributing to crash, you cannot recover.
• Contributory negligence is known as the “1% rule.” If you are 1% at fault and the other driver is 99% at fault, you may lose.
• Because of this doctrine, the other driver’s insurance company will always be looking to find a way to blame the rider for causing the crash in an effort to avoid responsibility for paying for your injuries.
• Therefore, it is up to the rider to protect yourself before your ride and conduct yourself during your ride to make certain that you do not contribute to your own incident and injury.  Avoid giving the liable party ammunition to use against you, if you are injured by another’s negligence.
• If you do find yourself injured due to the negligence of another driver, everything that you can do at the scene of crash to preserve and accumulate evidence will help your lawyer succeed, in proving what is necessary to get you treated fairly for your injuries and for the other driver’s negligence.

The more that you can do before you get on your bike to anticipate, a perhaps avoid, a problem, the more likely your outcome will be positive.  Let’s look at You, Your Bike and Your Finances.

Your Financial Preparedness

• Your Financial Preparedness
  • The single most important thing you can do before you get on your bike is to make sure that there is enough insurance available to protect you if you are injured from someone else’s negligence.  The uninsured and underinsured motorist coverage of your automobile provides you with financial protection in the event you are injured in a collision between your bike and an automobile. If you own an automobile, look at your automobile declaration page from your insurance company and make sure you have at least $100,000 in underinsured motorist coverage. If someone else’s negligence causes you injury at least you will have that fund to compensate you, regardless of the coverage of the negligent party.
  • Review your health insurance coverage so you understand whether there are bicycle-related injuries that may not be covered.
  • Review your renter’s or homeowner’s insurance policy to determine whether it will cover your bicycle against damage, theft or vandalism, if that occurs outside of residential premises. If you come outside from your coffee shop visit and the bike lock remains but the bike is gone, you need to know whether you are protected.
  • Keep receipts and documentation of your bicycle and any accessories so that you can prove value for any insurance claim or legal proceeding for harm to the equipment.
  • Consider whether to have a power of attorney created that would allow a family member to act on your behalf, including the power to direct medical attention for you, should you suffer an injury that renders you incapacitated.
• Your Physical Preparedness
  • Drink water before you start your ride. Hydration affects reaction time, coordination and endurance, particularly in warm weather.
  • Eat appropriately before taking longer rides to maintain energy and focus. You do not want to “bonk” as that impair your judgment on the road.
  • Do not ride if you are taking medications that cause drowsiness or affect your vision.
  • Make sure you have safety eyewear, not only for vision, but for protection from road hazards.
  • Do not ride under the influence of alcohol or drugs. Although Virginia Code 18.2-266, prohibiting operating a motor vehicle while under the influence, does not apply to bicycles, you could be charged with public intoxication, disorderly conduct or reckless biking.
  • Carry a phone in case of emergency and let someone know your planned route and expected return time. The phone is particularly valuable as a means to record both photo and video images at the scene of your crash, which may be the only source of evidence available to help prove the negligence of another party for your injuries.
• Your Equipment Preparedness
  • Wear a properly fitted helmet. Even though Virginia laws do not require adult cyclists to wear a helmet, it will significantly reduce the risk of traumatic brain injury if you are involved in a crash.
  • Inspect your tires for proper inflation or cut. Underinflated tires are a leading cause of losing control of a bike. Test your brakes to ensure proper contact so that you can safely conduct an emergency stop.
  • Confirm that your front white headlight and rear red reflector or taillight is functioning. Virginia Code 46.2-1015 requires a white front light visible from 500 feet and a rear reflector visible from 600 feet when operating between sunset and sunrise.  If you ride at night on a road with speed limits over 35 mph, you also must have a red taillight. Your failure to have these will result in a claim that you were partially negligent in contributing to your own crash in an effort to defeat your right to recover if you are injured.
    • Bike Norfolk note: Consider riding with front and rear lights even during the day for increased visibility. 
  • Ride with bright reflective clothing or accessory lights on your body, to maximize your visibility to drivers, and secure loose clothing or pant legs that could catch in your drivetrain.
  • Use some form of recording device on your bike. A bike or helmet mounted camera, operating while you are riding, may be the only opportunity to prove exactly what happened immediately before your crash.

• Your Rights on the Road
  • You have the right to use public roads. Motorists must treat you as they would any other vehicle. Virginia Code 46.2-800.
  • Motorists are legally required to pass you at a safe distance of no less than three feet to the left of your bicycle. Virginia Code 46.2-839.
  • If a lane is not wide enough for a car to safely pass you with three feet of clearance, the driver must change lanes in order to pass your bike. Virginia Code 46.2-839.
  • You may use the full travel lane when riding at the normal speed of traffic, when preparing to turn left, when passing another vehicle, in order to avoid a hazard or when the lane is too narrow to share safely. Virginia Code 46.2-905.  In all other situations, if you are riding at less than the posted speed, you must ride as close as is practicable to the right curb or edge of the road.
  • You may ride on sidewalks and shared-use paths unless prohibited by local ordinance or by a postage sign. Virginia Code 46.2-903.
  • Drivers may be fined up to $250 and receive demerit points for following too closely behind a cyclist. Virginia Code 46.2-816.
• Your Responsibilities on the Road
  • You must ride with the flow of traffic. Always on the right side of the road and riding against traffic is illegal. Virginia Code 46.2- 802.
  • You must obey all traffic signs, signals, lights and pavement markings, just as the driver of any motor vehicle would. Virginia Code 46.2-833.
  • Use proper hand signals when turning or stopping. Left arm horizontal for a left turn, right arm horizontal or left arm pointing up for a right turn, left arm extending downward to signal slowing or stopping. Virginia Code 46.2-849.
  • You may proceed through a solid red light only after stopping completely for two full signal cycles or two minutes, whichever is shorter, and then only when it is safe to do so.  You must yield to all crossing traffic. Virginia Code 46.2-833A.
  • Ride no more than two abreast in a lane. If choosing to ride two abreast, do not impede traffic and move to a single file if being overtaken by a motor vehicle from behind. Virginia Code 46.2-905.
  • When riding on sidewalks or shared use paths, you must yield the right of way to pedestrians and give an audible signal before passing. Virginia Code 46.2-904.
    • Bike Norfolk note: Bike riding on most Norfolk sidewalks is allowed, but bike riding on sidewalks in Downtown Norfolk is prohibited by ordinance. 
  • Do not wear headphones or ear buds in both ears while riding. Virginia Code 46.2-1078.
  • Helmets are not required by Virginia state law for adults, however some localities require riders 14 years and under to wear helmets. Check with the appropriate local ordinance for any changes to this law.
    • Bike Norfolk note: City of Norfolk requires helmets for riders 14 years and younger.
  • Remember, your failure to abide by the law, your failure to keep a proper lookout, your failure to display proper equipment for lights and your failure to act as a reasonable person would under similar circumstances, will ALL BE USED to claim you were contributorily negligence in causing your own crash and injury. 

• At the Scene
  • Call 911. Even if the injuries seem minor at the scene, a 911 call will result in EMS service is being dispatched to assist you and police being dispatched to investigate. Police officers at the scene are of enormous value to your attorneys in gathering and providing evidence to establish the fault of the other driver. They will often make a full police report, they will obtain names and contact information from witnesses, they oftentimes have body worn camera that might record incriminating statements, they may take photographs or create diagrams of the scene and none of this can be reproduced once you leave. 
  • Do not move about if you are seriously injured. Wait for EMS services to arrive. Many times, riders do not appreciate the extent of their injury, and movement, particularly an effort to get up and get back on the bike to go home, may compound injuries.
  • Exchange information with the other driver, particularly name, address and phone number along with their insurance information.
  • Get the names and contact information of any witnesses at the scene. Police are often busy and do not obtain this information as they are not focused on corroborating information, unless it is necessary for them to investigate a traffic offense. That is completely different from our need to investigate the civil injury claim.
  • Everyone is carrying around a portable television station in their pocket, in the form of a cell phone. Take pictures and videos of everything. Take pictures of the scene, as those change rapidly. Take pictures of the damage to the other vehicle and the placement of your bike and the other vehicle after the crash. Take pictures of the other driver and perhaps of the driver’s license and insurance card as well as license plate, so that your attorney can identify the proper parties.
  • While it is advisable to explain what happened with the police, be brief, as your immediate recall may be clouded by injury.  Do not admit fault, do not express regret or sorrow or apologize. Statements at the scene are often captured on Body Cam or Dash Cam video and will be used against you if they attribute responsibility to you. Stick to the facts.
  • Do not hesitate to get medical attention immediately after the crash. No one wants a trip to the emergency room, but documentation of your injuries is critical. Many cyclists suffer impacts to the head and helmet and proper diagnostic evaluation by CT scan at the hospital is critical to determine whether there is a traumatic brain injury at the most early stages.
  • If you receive a traffic summons from the police at the scene of your crash, immediately provide it to your attorney. Do not ever prepay a summons to avoid the hassle of going to court, as it will be considered an admission of the essential facts and will likely prevent you from recovering.
  • If you become aware at the scene that the other driver has been issued a summons, make your attorney aware that an investigation can be conducted into the results of the traffic hearing for the other driver. Although the results of that hearing are not legally determinative of your ability to recover, it may bear on the legitimacy of any claim that you were partially at fault.
  • If the driver who caused your crash leaves the scene of the accident, before you can get any information, you still can pursue a claim under the uninsured motorist provisions of your automobile policy, as that policy and the law provide coverage for an unknown driver.
  • If you are the subject of incident that causes injury as the result of the conduct of another driver that did not result in contact with your bike, you may still pursue a claim. You must, however, involve the police immediately so that the facts and circumstances of the incident can be documented against the unknown driver.
• After the Scene
  • If you have been injured by the negligence of another, you must contact an experienced personal injury attorney as soon as possible. You should not, before speaking with an attorney, talk with a claims representative from any insurance company, yours or the other driver’s. The insurance industry does not exist to help you.  It is focused on avoiding the responsibility of paying your claim and will use information recovered from you, against you. Leave it to your attorney to notify all appropriate insurance companies to make the claim.
  • Do not ever give a recorded statement over the phone to an insurance representative.
  • If you are not transported by EMS from the scene of your crash, seek medical attention immediately, even if you do not feel that emergency care is required. Concussion, internal trauma and other less obvious injuries occur frequently because the bicyclist is not protected as would be the occupant of a motor vehicle.  Medical records documenting the nature and extent of injury are critical for your lawyer.
  • Make sure you sequester the bicycle. If possible, have the police deliver it to your home or have family members recover it from the scene of the crash. Your attorney will want to examine the bicycle to determine points of impact as that may bear on liability.
  • Sequester any electronic recording devices that you use during your ride. GoPro cameras, computer devices, recorders, or anything that might have outlined your path, direction, speed, mileage, time, etc. must be saved and downloaded to a secure device. Many times, the information recorded will support your version of how a crash occurred and help your attorney establish fault.
  • Keep all records of medical bills, medical reports, repair estimates for the bicycle and gear, Documentation of any lost earnings as a result of your injury and, as soon as practical, make notes of your recollection of the facts and circumstances leading up to and including the crash. Note what you recall seeing, hearing, feeling and sometimes even smelling, for use by your attorney in recreating the moments before the crash.
  • Prompt contact with an attorney after your crash is critical as it allows for the accumulation and preservation of evidence to help establish right to recover. Keep in mind that Virginia has a statute of limitations that requires you to file suit or resolve your claim no later than two years from the date of the injury or you will forever lose the opportunity to recover.
  • Depending upon the severity of any traffic or criminal charges that have been issued as a result of the incident, you may be contacted by the Commonwealth’s Attorney’s Office representative, as your role in any traffic or criminal matter as the injured person, becomes one of a witness/victim. Prosecution of the case will often require your participation, however before you speak to that office, you should confer with your attorney so that your role is well defined and so that you understand the relationship between the civil and criminal/traffic matter.

When we get on our bike anticipating either a pleasant recreational day or a physical endurance challenge, we never contemplate that the end result of the ride may be the loss of a life.  However, the reality is that, in the battle between a 6,000 lb. vehicle and an unprotected cyclist, the rider rarely wins. In those tragic circumstances the burden falls upon the family members of the deceased rider to conduct the investigation, retain counsel and seek compensation as a result of the conduct of the wrongful driver who caused the death. Much of what has been set forth above applies in this circumstance but there are some notable differences for the family.

• While the claim for injury to a rider survives his crash is brought by the rider, a claim as a result of the death of a rider is only properly brought by the administrator of the estate of the deceased rider. That individual qualifies before the court and is vested with the sole right and responsibility to pursue the claim against the wrongful driver.
• A wrongful death claim seeks recovery and compensation, not for the harm to the person who passed away, but rather for the family members who are left behind.
• The Virginia statutes relating to a wrongful death claim define the class of persons for whom any recovery is intended to benefit and sets forth the elements of damage, being the sorrow and losses suffered by those family members, rather than traditional items of damage such as medical bills and the injury suffered by the decedent.
• The statute of limitations for bringing a wrongful death action is different from that for an injury claim.
• In circumstances where a cyclist does not survive the crash, it is more important than ever for a family member to seek legal counsel experienced in injury matters, wrongful death claims and with experience representing cyclists, to ensure that the proper person, with proper authority, is spearheading the investigation and ultimately the claim.

Many cyclists have described their previous experience after a crash in dealing with police, insurance companies, medical providers and sometimes the press, as distressing, disturbing, unsatisfying, unsympathetic and frustrating. In a society where blaming the victim is commonplace, and in a community where the vast majority of those using the roadways are on four wheels, resenting those of us on two for having to share the road, the playing field is not level. If you wish to hold a driver accountable for failing to be responsible, for ignoring your rights and for causing you injury, then taking every step you can, before, during and after your crash, to protect yourself increases your opportunity to be treated fairly. 

Whether you are more comfortable with “Knowledge is Power” or “Forewarned is Forearmed,” the more you know in advance, the better prepared you are to avoid a crash and to confront that situation when it occurs.   We hope that this resource will aid your quest for justice, should you find yourself the victim of someone else’s negligence.