Bicycle Austin forum

btrettel

Member

Registered: 2013-10-01

Posts: 60

UT claims no liability for its driver hitting cyclist April Garner

I sent the following email to UT's president on May 7, 2019 about a legal case where a UT driver hit a non-UT cyclist. I am yet to receive a response. UT's lawyers have been trying to get out of liability for this by arguing that cycling is inherently recreational and therefore because the cyclist was not affiliated with UT, they were only present for recreational purposes and the university is not liable if a non-UT person is injured during recreation on the UT campus.

Dr. Fenves,

I am a PhD student in mechanical engineering here at UT.

I was dismayed to recently read the university's attempt to deflect liability when a university driver collided with a cyclist:

https://www.statesman.com/news/20190426 … ity-issues

The university's argument that cycling is inherently recreational is dismissive to those like myself who use bikes for transportation only, and not recreation. A non-UT driver would clearly not face the same argument. UT's argument is literally discrimination against cyclists. This is a strongly anti-cycling stance that I believe is a mistake for the university, regardless of whether it is legally correct.

While I am glad that the courts have so far dismissed the university's arguments, I am not happy that the university has appealed the court's decision and appears to intend to continue making the same arguments.

The university already asks me periodically for donations. Why should I donate to an organization that argues against my interests?

Please reconsider the legal arguments UT's lawyers are making, and drop the appeal. Cyclists should not be treated as second class citizens.

I'm starting to check which states have laws similar to those cited by UT's lawyers just in case their argument is found to be successful.

MichaelBluejay

Webmaster

From: Austin, TX

Registered: 2008-05-26

Posts: 1,466

Website

Re: UT claims no liability for its driver hitting cyclist April Garner

Thanks for trying to hold UT accountable on this.

It's funny, parents get upset when their children don't cop to some wrongdoing.  Well, when do adults ever do so?  My insurance company is always sending me newsletters telling me never to admit fault...even if I was at fault.

btrettel

Member

Registered: 2013-10-01

Posts: 60

Re: UT claims no liability for its driver hitting cyclist April Garner

After sending a followup message saying that I no longer intend to donate to UT in the future, I received the following reply from Carlos E. Martinez, the president's chief of staff:

Mr. Trettel,

Thank you for writing the president’s office regarding the law suit involving UT Austin.  I am responding on behalf of President Fenves.

We appreciate your perspective as a student and cyclist in our community; it helps us keep in tune with those important to us. Due to pending litigation, we cannot comment further.

Thanks again for writing.

Carlos

MichaelBluejay

Webmaster

From: Austin, TX

Registered: 2008-05-26

Posts: 1,466

Website

Re: UT claims no liability for its driver hitting cyclist April Garner

Of course, if UT had simply accepted responsibility, there wouldn't *be* any pending litigation.

Also, it's interesting that the chief of staff at one of the best-known institutions of higher learning in the United States cannot spell "lawsuit".

btrettel

Member

Registered: 2013-10-01

Posts: 60

Re: UT claims no liability for its driver hitting cyclist April Garner

Linked below is an excellent summary of state recreational use statutes as of 2006. This is the law that UT's lawyers are citing.

https://theraf.org/sites/default/files/ … ussion.pdf

The states which define cycling as recreational are: CO, ID, KY, LA, ME, MN, MO, MT, NY, OK, RI, SD, TX, UT, VT, VA, WA, WV, WI

The states which do not define cycling as recreational are: AL, CT, DE, FL, GA, HI, IL, KS, MD, MA, MI, NE, NH, NM, NC, ND, OH, OR, PA, TN, WY

Ambiguous states: AZ ("ride"), AR ("Any other activity undertaken for exercise"), CA ("riding"), IN, IA ("other summer and winter sports"), MI ("any other outdoor recreational use or trail use"), NV ("(l) Crossing over to public land or land dedicated for public use."), NJ ("any other outdoor sport"), SC ("summer and winter sports")

Number of "recreational" states: 19
Number of "not recreational" states: 21
Number of ambiguous states: 9

DC seems to be missing, so I'll have to track the laws there down later.

For a while I've felt that this website, which compares cycling laws in different states, was incomplete and had a clear agenda: http://iamtraffic.org/advocacy-focus-ar … -by-state/

For example, despite the mentioned website liking North Carolina, North Carolina is one of the few contributory negligence states, which makes it very unattractive for cyclists in my view. Now, thanks to the creativity of UT's lawyers (one way to put it...), another way to increase liability for cyclists has emerged.

Last edited by btrettel (2019-05-22 13:59:25)

dougmc

Administrator

Registered: 2008-06-01

Posts: 631

Re: UT claims no liability for its driver hitting cyclist April Garner

I'm no lawyer so I'm not really up on this, but looking at the referenced Texas law, a few things stick out --

1. this law sucks.

2. It's not just cyclists that get screwed by this.  Some things that stick out that might be used similarly to how UT is trying to use it against this cyclist --

   (3)  "Recreation" means an activity such as:
   (G)  hiking;
   (H)  pleasure driving ...
   (I)  nature study, including bird-watching;
   (L)  any other activity associated with enjoying nature or the outdoors;
   (M)  bicycling and mountain biking;
   (O)  on-leash and off-leash walking of dogs; or

3. Unless the UT campus qualifies as "agricultural land" (and I don't see how) I don't see how this could possibly apply.  Similarly, trying to say that people just going through UT qualify as "trespassing" sounds like a *huge* stretch.

As I understand it, UT keeps making these arguments and the courts keep rejecting them?  If so ... good.

owlman

Member

Registered: 2011-12-16

Posts: 142

Re: UT claims no liability for its driver hitting cyclist April Garner

UT not liable, bicyclist trespassing when university truck hit her, court finds
https://today.statesman.com/express/fri … 18--2019/9

on Friday, the Texas Supreme Court dismissed Garner's case in a unanimous ruling, reversing the lower court's ruling and holding that the Recreational Use Statute does apply, maintaining UT's immunity from lawsuit.

The opinion: https://www.txcourts.gov/media/1444971/180740.pdf

Riding a bicycle on campus (or any state property) shields the state from ordinary negligence claims. Doesn't matter if commuting or not:

To the extent Garner argues that she was bicycling on Alvin for transportation rather than recreational
purposes, her subjective intent does not control... Under the statute’s plain language, bicycling is recreation."

Last edited by owlman (2019-10-20 09:17:01)

btrettel

Member

Registered: 2013-10-01

Posts: 60

Re: UT claims no liability for its driver hitting cyclist April Garner

The TX Supreme Court's reversal is awful. Cyclist hostile laws like recreational use statutes need to be eliminated...

Last edited by btrettel (2019-10-20 12:52:10)

MichaelBluejay

Webmaster

From: Austin, TX

Registered: 2008-05-26

Posts: 1,466

Website

Re: UT claims no liability for its driver hitting cyclist April Garner

I think the bigger problem is the anti-bicyclist bias that allowed the court to find an excuse to blame the cyclist.