Beating comparative fault in a vehicle vs. bicycle trial

Le Moullac v. Daylight Foods

Micha Star Liberty
William Veen
Jeremy Cloyd
2015 July

Twenty-four-year-old Amelie Le Moullac was bicycling to work a couple years ago on San Francisco city streets when a delivery truck driver turned right across her bike lane, propelled her from her bike, and then ran over her twice. Her parents’ wrongful death claims went to trial a year-and-a-half later in the case of Le Moullac v. Daylight Foods.

The delivery company denied any responsibility throughout and asked the jury to deliver a defense verdict. The defense theorized that Amelie was unsafely passing a right-turning delivery truck on the right, either because she was distracted by headphone music or because she was in a hurry to get to work. This article looks at three strategies that were effective in dealing with the comparative fault arguments before, during, and after the presentation of evidence.

Voir dire exposed juror biases

We were concerned that jurors would apportion some degree of fault simply because Amelie was a bicyclist. After all, Amelie’s case made news when surveillance video surfaced showing that the San Francisco Police Department had wrongly faulted Amelie for the collision. Some felt this discovery revealed a glimpse of a systemic bias – or rush to judgment − against bicyclists. Even after the video was discovered, the district attorney’s office – the same office that prosecuted a bicyclist for negligently killing a pedestrian the year prior − declined to prosecute the driver that killed Amelie as a result of a traffic violation.

Our jury pool demonstrated bias covering all points of the love/hate spectrum for and against bicyclists. The prospective jurors that came in from their commute with helmets under arm or Velcro® straps on their legs were easy targets for the defense. But those carrying biases against bicyclists did not wear them so plainly.

To get jurors to start discussing their views on bicyclists, we welcomed the concept that not all bicyclists are all good or all bad. “Has anyone had a negative interaction with a bicyclist? Tell me about that.” “Has anyone seen a bicyclist roll through a stop sign?” In addition to exposing negative views about bicyclists, these questions played the foil to our clients’ daughter − one of the “good ones” who was following traffic laws when she was run over.

We also wanted to expose beliefs that Amelie might share some responsibility simply because she chose to ride a bike in the City. “Does anyone feel that a bicyclist assumes some degree of risk by choosing to ride on San Francisco city streets? What about a bicyclist who stays in the bicycle lane? Can that person assume they will be safe and others will not enter their lane?”

We were surprised to learn that not all jurors felt that Amelie’s use of the bike lane was necessarily a good fact for us. Some jurors felt that the bike lane should be a zone of safety for bicyclists. Others felt that a bike lane is a shared area where bicyclists need to be alert and ready to yield to motorists. This turned out to be a central tenet of the defense case. We therefore knew that we needed to hammer throughout trial the concept that a bike lane should be a safe area for bicyclists.

Accident reconstruction showed the bicyclist was where she was supposed to be

The defense tried to depict Amelie as reckless – one of the “bad ones” the jurors had discussed during voir dire. They argued that she had plenty of time to see the truck turning ahead of her. They argued she should have merged to the left around the truck rather than continue traveling in the bicycle lane at twice the truck’s speed. They were allowed to show the jury training videos with examples of bad bicycling behavior. Plaintiffs’ accident reconstruction was thus essential to show that Amelie was in fact one of the “good ones” and was following all traffic laws
at the time she was run over.

The reconstruction of bicycle collisions, generally, poses different challenges than motor vehicle versus motor vehicle collisions. The bicycle and rider are not attached and may come to rest at different locations. Bicycles are more easily moved following a collision than cars and thus evidence of its resting place may be lost. There is also often less evidence of the point of impact such as skid marks or damage to the motor vehicle. And bicyclists of course are more susceptible to death or serious brain injuries that would prevent them from providing evidence about how the collision occurred.

These difficulties require a prompt review and preservation of the scene of a bicycle collision. In this case, a member of the San Francisco Bicycle Coalition found video surveillance of the collision from an auto body shop’s security system. The police department had overlooked the video and it was saved just before the security system’s DVR would have erased it forever. To its credit, however, the police department took abundant high resolution photographs of the scene and evidence from all angles. The importance of these photographs was highlighted when the intersection underwent a lane reconfiguration shortly after the collision.

Preservation of Amelie’s clothing, helmet, bicycle and backpack also helped reconstruct the collision. Our biomechanist evaluated the nature of the damage to these items to help remove uncertainties about how the bike, asphalt, Amelie, and the truck all interacted with each other through the entire chain of events. For example, a tread pattern on Amelie’s helmet matched up to the unique markings of the truck’s rear tire. And a scuff mark on her shoe suggested an initial point of contact with the truck’s right front tire.

One of the things we wanted to know was where the truck driver started his turn. Did he merge into the bike lane before turning or did he suddenly turn across it in violation of the Vehicle Code? In order to figure out the truck’s path we needed to know enough of the points along that arc. Whereas a straight path of travel may only include two points, the path of a turning movement, i.e., an arc, contains at least three. Fortunately, enough evidence had been preserved to draw the path of the truck’s turn, and the reconstruction showed the truck’s path during the turn.

The most visually stunning aspect of the reconstruction, though, was putting all of the evidence collected into a 3-D reconstruction of the intersection in order to show the relative times, speeds and distances. The reconstruction showed that whereas Amelie would have been visible in the truck’s mirrors at the time the driver began his turning movement, Amelie would not have detected the truck’s change in course until just nine-tenths of a second before impact. Thus, even if the jury bought into the theory that bike lanes are intended to be shared zones rather than zones of safety, our accident reconstruction showed that Amelie was never given an opportunity to share.

Specific jury instructions on the law

The defense argued that Amelie was required by law to slow for the truck, leave the bike lane and merge to the left around the turning delivery truck. The defense attorneys told the jurors that this was the case throughout trial and even hired a bicycle expert who stated that Amelie was required to follow this law.  We undermined this defense strategy with specially drafted jury instructions setting forth the specific rights and responsibilities of bicyclists found in California Vehicle Code sections 21200-21212.

Defendant requested a negligence per se instruction based upon California Vehicle Code section 21202 to support its theory. That statute provides that “Any person operating a bicycle upon a roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride as close as practicable to the right-hand curb or edge of the roadway except…When overtaking and passing another bicycle or vehicle proceeding in the same direction…” and “when approaching a place where a right turn is authorized.” The defense argued that this language indicated a mandatory requirement for Amelie to leave the bike lane to avoid turning vehicles.

We found a slightly different statute that applied for circumstances involving bike lanes. California Vehicle Code section 21208 provides pertinently that “Whenever a bicycle lane has been established on a roadway … any person operating a bicycle upon the roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride within the bicycle lane, except that the person may move out of the lane…” in the same circumstances set forth in section 21202. We felt that the permissive “may” language not found in the more general statute was very important and emphasized that Amelie had a right to remain in her bike lane – to treat it as her safety zone.

When statutes conflict

California Code of Civil Procedure section 1859 provides that where a more specific statute is inconsistent with a more general statute, the more specific statute controls:

In the construction of a statute the intention of the Legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.

This is also the common law. (See e.g., Woods v. Young (1991) 53 Cal.3d 315, 324.) We therefore argued that the defense’s proffered instruction incorrectly stated the law because a more specific statute controlled. The Court agreed and refused to instruct on the more general statute the defense had promised to the jury. During deliberations we were pleased to receive a jury question asking about its absence.


Amelie’s parents felt that police investigators, a district attorney’s office, and an insurance company had all failed them. A civil jury trial was their last hope. They were very grateful to have a careful jury evaluate the evidence and find their daughter shared no responsibility for her death. We hope that our own experiences in reaching this result for her parents can also help other victims of bicycle accidents find justice.

Micha Star Liberty Micha Star Liberty

Micha Star Liberty is a civil rights attorney specializing in litigating serious injury, civil rights, sexual abuse, and employment matters in both individual and class actions. She is a certified mediator with over 40 hours of training who performs mediation for the Contra Costa Superior Court. She is also a frequent lecturer and widely published author. Ms. Liberty is a graduate of the University of California at Los Angeles and the University of California, Hastings College of the Law. She was recently elected to serve an unprecedented third one-year term on the California State Bar Board of Governors, and was also elected to be a Vice President of the State Bar of California. She actively serves on the boards of the Consumer Attorneys of California, the Alameda-Contra Costa County Trial Lawyers Association (President 2010, Former Secretary and Treasurer, Former Editor of The Verdict magazine).

William Veen William Veen

William Veen founded The Veen Firm, P.C. as a sole practitioner in 1975, gradually developing it into a firm of talented attorneys and staff who represent severely injured workers and consumers. He is a member of the American Board of Trial Advocates and honored as the Trial Lawyer of the Year by the San Francisco Trial Lawyers Association in 2003.

Jeremy Cloyd Jeremy Cloyd

Jeremy Cloyd is a Partner at Altair Law in San Francisco. He focuses on injury cases that have impacted his clients’ life, work, or happiness. 

Mr. Cloyd has extensive trial experience having obtained successful trial verdicts in both state and federal court. He prepares all cases for trial, which has resulted in numerous, favorable, pre-trial settlements. Mr. Cloyd has experience representing victims of construction site negligence, medical malpractice, police misconduct, government claims, dangerous property, on-the-job injuries, brain injuries, spinal cord injuries, gas explosions, auto accidents, dog bites, dangerous property, wrongful death and amputations.

In 2011, Mr. Cloyd was named a finalist for the Trial Lawyer of the Year award by the San Francisco Trial Lawyers Association for his work as co-trial counsel in the case of Travis v. Bison Builders, Inc., which resulted in the largest injury verdict in Marin County history.  He was a finalist again in 2015 as co-trial counsel in the case of Le Moullac v. Daylight Foods, Inc. a disputed liability case involving the tragic death of a San Francisco bicyclist. He has been named a “Rising Star” by Super Lawyers Magazine every year since 2009 – an honor given to no more than 2.5% of California lawyers.

Beating comparative fault in a vehicle vs. bicycle trial

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