May 2022 Bike Case of the Month:  Waring v. Womack1

Summary:  The cyclist was badly injured when the oncoming car turned left in front of him.  The driver stated that his view of the oncoming cyclist was not obstructed, and the sun was not in his eyes, but even so, he just didn’t see the cyclist.  The cyclist claimed that the car was negligent for failing to maintain a proper lookout and in failing to yield the right-of-way while turning left. The jury found no negligence. 

It appears that a major reason for the finding of no negligence was the testimony and opinions of the hired insurance company “expert” who opined that the cyclist was about 6 seconds away from the intersection when the car began its turn and that both parties could have avoided the collision. The Court said that the 6 seconds suggests that Mr. Wommack may not have been negligent in beginning his turn when he did.

Case Insights Relevant To Cyclists

  1. As a Cyclist, you will get little sympathy in the Texas Legal System. 
  2. Insurance companies will sometimes hire “experts” to challenge liability (as well as medical expenses). Most of these “experts” are hired guns that make their livings giving opinions to benefit insurance companies. 
  3. As a cyclist, you are almost invisible to car drivers, who just don’t expect to see cyclists. Don’t wear dark clothes and use lights. 
  4. Intersections are dangerous for cyclists.

Explanation

  1. As a Cyclist, you will get no sympathy in the Texas Legal System. 
    1. Juries: You’re case will not be tried by a jury of your peers:  You can rest assured that there will never be a cyclist on jury for a cycling accident case. This is because of the “voir dire” jury selection process in which attorneys get to ask jurors questions about many things including their views on cyclists. If anyone is a cyclist or sympathetic to cyclists, the defense attorney will use his “strikes” to eliminate that person.2 Of course, the cyclist’s attorney will use his strikes to eliminate cyclist haters, but what this leaves is a panel of people that don’t ride, and tend to think that bikes should be on sidewalks and that anyone who rides a bike on the road is engaging in risky behavior and is contributorily negligent just by riding on the road.  In other words, a cyclist often starts out a bit behind in any jury trial.

The Waring case provides a perfect example. The Defendant stated that he had no obstructions to his view of the oncoming cyclist, and yet the jury found no negligence. If the plaintiff were a car, the jury would likely have found negligence. 

  1. Judges:  I’ve met a lot of cyclists who are attorneys, but I’ve never met a Texas Judge who is a cyclist.3 Because of this, judges tend to have the standard prejudices of non-cyclists mentioned above. I’ve noticed these prejudices repeatedly in judicial decisions.  This is just my personal opinion.   
  2. Texas Law:  In Texas, cyclists have “all the rights and duties operating a vehicle” but there are no laws that apply directly to motorists encountering cyclists. There are a few suggestions for car drivers in the Texas Driver’s Handbook, but these are only suggestions. Other states have “safe passing” laws, and Texas has tried to pass one a few times, but there is not one on the books yet.

2.  Insurance Company Experts

Insurance companies often hire “experts” to address liability/fault, and to minimize medical damages and expenses. In fact, there are many businesses which sole source of income comes from insurance companies that are seeking to minimize liability/damages.4

In Waring, the insurance company hired William Nalle, an engineer from Austin. The Court’s opinion made it appear as if Mr. Nalle was an impartial party beyond reproach, but that was not the case. Deposition testimony from Mr. Nalle reveals that his firm, Accident Reconstruction Engineers, has been in business since 1982 and that between 2000 and 2013, Mr. Nalle testified almost 145 times almost entirely for defendants and insurance companies.5 I would estimate that Mr. Nalle worked on thousands of other cases for insurance companies in which he did not give a deposition. 

The relevance to cyclists is that if you are in a lawsuit, you can expect that the defendant’s insurance company will hire a totally biased “expert” whose opinions will not be favorable to you. While the bias of these experts will be exposed at trial, their testimony often provides an excuse for a jury to minimize liability or damages.  (And remember, juries aren’t sympathetic to cyclists, and often look for any excuse to find against the cyclist.)

  1. Cyclists are Invisible to Cars.

In its opinion, the Court noted that the cyclist was wearing dark clothes that blended into the trees behind him. And the Defendant stated that he didn’t see the cyclist before he began his turn.  This is the most common explanation that car drivers give: “I didn’t see the cyclist.”  This comes up in 90% of my cases. 

I have one explanation and a few suggestions. The explanation is that drivers don’t expect to see cyclists on most roads, and if they don’t expect to see them, then they aren’t looking for them.  

As for avoiding this problem, the suggestions are obvious:  wear bright clothing, bright lights, and, if possible, ride with others.   

  1. Intersections are dangerous for cyclists.  

The Texas Driver’s handbook states:  “The most common motorist caused car-bicycle collision is a motorist turning left in the face of oncoming bicycle traffic. Oncoming bicycle traffic is often overlooked, or its speed misjudged.”6  (Section 13-3)

There is a good reason why “oncoming bike traffic is often overlooked” and that is due to the cyclist’s position and smaller size (as well as driver not expecting to see a cyclist).  Unless you are first at the intersection, then you are likely to be invisible to the oncoming driver who can’t see you because your are on the left side of the road and behind the car(s) in front of you.

So, when you approach an intersection with traffic, you should be hypervigilant.  

Citations

1-  Waring v. Womack 945 S.W.2d 889 *; 1997 Tex. App. LEXIS 2575 ** (Tex. App. – Austin, 1997, no writ)

2- Lawyers often say that they “pick the jury”, but that is not correct.  During Voir Dire, jurors are eliminated for challenges based on “cause” or “peremptory” challenges. The first 6 -12 jurors (depending on the Court) that remain after all challenges are those that sit on the jury.  (Those that tend to be in the back rows are rarely ever on the jury panel.)

3- It is my speculation that Texas Judges are not cyclists because of their position as judges.  They are usually in Court from 8 am to 5 pm. 

4- I have many “war stories” about defense experts, and just how biased and bad they are.

5-  Experts such as Mr. Nalle underscore the truth of Mark Twain’s “corn pone” quote:  “You tell me whar a man gits his corn pone, en I’ll tell you what his ‘pinions is.”  

6- My experience is different. While intersection collisions are quite common, most of my cases have involved cyclists being hit from behind or getting clipped by rear-view mirrors.