Footage can cut both ways.
Footage can cut both ways. (Photo: Gibson Pictures/iStock)

Caught on Camera

Cyclists have long claimed America's roads are unsafe. Thanks to the likes of GoPro, now there's proof. Is it making a difference?

Footage can cut both ways.
Vernon Felton

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Joe Schubauer-Berigan heard the car before he saw it. A moment before the driver rear-ended him and sent his body and bike flying through a Cincinnati intersection, Schubauer-Berigan heard an unsettling scraping, screeching noise as the bumper tore through his rear wheel. His bike—a pricey carbon-fiber Trek Madone 6.9—was crushed beneath the car’s front wheels as Schubauer-Berigan hit the hood and rolled to the pavement. He walked away from the crash with a concussion and road rash—and helmet-cam footage documenting the whole thing. 

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A growing number of riders are strapping on action cams before heading out on the road. While some are hoping to capture glorious videos of themselves dropping the hammer during the next supposedly casual group ride, their cameras are also recording run-ins with motorists. Schubauer-Berigan’s video is just one example. Hit and run in Berkeley? Captured on a handlebar cam. Road rage near Boulder? Got it on the iPhone. Every cyclist’s worst nightmare? Cataloged in horrifying detail by the Fly6, a combination rear bike light and video camera that nabs footage of everything happening on the road behind you.

Cycliq, maker of the Fly6, recently rolled out the Fly12, a handlebar-mounted headlight/video camera that also shows if cars are less than three feet from you when they drive past, which would violate the three-foot passing laws currently on the books in 24 states. 

Bike-versus-car incidents often devolve into he-said-she-said disputes, with neither party able to provide tangible evidence to prove definitively who was at fault. That could change with the proliferation in the past few years of inexpensive, portable POV action cameras, which are yielding evidence. Lots of it. 

GoPro, Contour, Olfi, JVC, Drift, Garmin, Polaroid, Shimano, Sony—there’s no shortage of portable, affordable action cameras that will document what happened on your last ride in brilliant, high-definition video.

“Once camera prices dropped and the technology advanced, they began to make more sense for riders,” says Megan Hottman, an avid rider and racer who has competed professionally and whose Golden, Colorado–based law firm deals exclusively with cycling cases. “These days, you can come home from your ride and quickly download or erase the day’s footage in a couple minutes. It’s become affordable and painless, and that’s why we’re seeing more video footage introduced in cases.”

But whether this footage holds up in court remains to be seen.  

In the days following his 2014 crash, Schubauer-Berigan filed a civil claim against the driver who hit him. The driver proclaimed his innocence. He told his insurance adjuster that Schubauer-Berigan had come out of nowhere and jumped in front of his vehicle. As is often the case, it came down to the cyclist’s word versus the motorist’s word. At least, says Steve Magas, Schubauer-Berigan’s lawyer, that was the case until he handed over the footage from his client’s Contour helmet camera. 

“Oh, that footage had an impact, alright,” says Magas. “They were trying to blame Joe. But the videotape clearly shows Joe being hit from behind by a guy that just wasn’t paying attention. When we showed the insurance adjuster the video, it was all over. Slam dunk.” 

“If people driving cars start to realize that they might be on camera, it brings accountability to the table.”

Once presented with the video, the driver’s insurance company quickly agreed to a confidential settlement with Schubauer-Berigan. 

Footage like Schubauer-Berigan’s typically gets used in one of two basic types of cases, says Bob Mionske, a two-time Olympian and former professional racer who, for the past 17 years, has worked as an attorney and author specializing in bike-related law. First, it could appear as evidence in a civil case between two citizens—a cyclist brings a legal claim against a driver to cover damages, and there’s a disagreement about who caused the crash. “In those cases,” he says, “video footage can be very effective in showing who’s responsible.” 

But criminal cases, where the standard of proof is higher, are a different story. “The legal standard for a civil case is ‘more likely than not,’” says Mionske. “In other words, the evidence has to show that it’s more likely than not that the driver violated their duty of care as a motorist.”

In a criminal case, the state’s district attorney might bring charges against the driver for harassing or endangering the cyclist in an attempt to get a dangerous driver off the road. “The video footage here has to show beyond a reasonable doubt that the motorist is guilty,” says Mionske. “If someone on the jury has any doubt about what happened, the motorist can get off free.”

Consider the case of Bryan Larsen. In May 2014, the semipro cyclist was riding down Southern California’s Pacific Coast Highway when a driver in a pickup repeatedly drove into the bike lane and proceeded to roll-coal Larsen, accelerating alongside the cyclist and enveloping him in clouds of black exhaust

When the driver veered toward Larsen for the fourth time, the cyclist pulled out his smartphone and videotaped the incident

Larsen brought the case to the Orange Country Sheriff’s Department. After reviewing the video, the sheriff’s department declined to file criminal charges against the driver. They did, however, consider bringing battery charges against the passenger who threw the bottle and against Larsen for using “words in public likely to illicit a violent reaction.”

You might think footage is footage, but there’s more than one way to watch any given video. “Let’s say a motorist buzzes you and violates their legal duty to pass with reasonable care,” says Mionske. “You catch the incident on video, and then the altercation continues. Maybe you yell or thump the car because you’ve just nearly been killed. Those emotions captured on video have the effect—for some people viewing the footage, at least—of creating an equivalency between the motorist’s act of aggression and your response. It turns the aggressive motorist and you, the cyclist, into equivalent combatants in the eyes of some jurists.”

In other words, the footage can cut both ways. 

There are also limits to what a single camera can prove beyond a reasonable doubt. “A GoPro-style camera can capture the basic event, but is the footage clear enough to clearly show the driver?” says Hottman. “In some of these criminal cases, the driver will claim that someone else was driving their car—that they weren’t even there.”

Given the many YouTube clips and media reports of road-raging motorists, you might assume that riding America’s roads has become more dangerous in recent years. The truth is more complicated. While America’s roadway infrastructure needs further improvement, the risk of being killed while riding a bike has decreased. 

On average, about 700 hundred cyclists are killed on America’s roadways each year. While every death is one death too many, these cases have actually declined slightly since the National Highway Traffic Safety Administration began tracking them in 1975. What’s more, this reduction occurred during a period when the number of bicycle trips actually doubled. 

This doesn’t mean cycling America’s roadways is “safe” per se. The same statistics show that, on a per-trip basis, cyclists in the United States die on roads at twice the rate of motorists. Moreover, cyclist mortality has risen slightly in recent years, a trend some suggest is tied to increasing numbers of motorists driving while texting. In short, there’s still work to be done, but there’s also reason to be optimistic.

“You continue to find a bias favoring drivers in the legal system,” says Mionske “but change is coming fast. I never saw an adult on a road bike until I was well into college. Today, there isn’t anyone in the United States who can say that. And because of that, there’s more awareness of cyclist and their rights. That’s a good thing.” 

Could the proliferation of POV-style cameras further increase that awareness?

“I think so,” says Bill Shirer, an attorney in Dallas who also specializes in bicycle collision cases. “If people driving cars start to realize that they might be on camera, it’s going to change how some of them share the roads with cyclists. It brings accountability to the table.”

For his part, Joe Schubauer-Berigan, won’t ride again without his camera. 

“I do feel pretty nerdy wearing my camera every day,” he admits, “but it works. It’s vital to proving what actually happened out there. Let’s put it this way: I wouldn’t ride without one.”

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Lead Photo: Gibson Pictures/iStock