May is bike month and with that New York is expected to see an exponential
growth in cycling as we enter the cycling season. The New York City Department
of Transportation reported that between 2007 and 2009 commuter cycling
increased by 45 percent. The city says it remains on track to meet its
goal of 1,800 bike-lane miles by 2030, as outlined in the Bike Master
Plan and the Bloomberg administration's goal to expand sustainable
transportation. With the aggressive promotion of cycling by advocacy groups
such as Transportation Alternatives and others, we will see more cyclists
on the roads than ever before.
Unfortunately, the transition to safe road-sharing between cars and bikes
still has a long way to go. Crashes with motor vehicles still remain the
number one concern for New York cyclists. While most assume that the typical
bike vs. car crash involves one striking the other, a more common and
perhaps even more dangerous crash is what is known in the cycling community
as a "dooring," when a vehicle door is opened into a cyclist's
path of travel. To an attorney representing the rights of an injured cyclist
or to one defending this type of crash, it surprisingly creates a wealth
of legal issues, including multiple statutory violations, issues of vicarious
liability, conflict of laws, as well as coverage issues that one would
not normally contemplate in a simple car on bike crash.
Vehicle and Traffic Law §1214
A "dooring" typically involves an alleged violation of Vehicle
& Traffic Law (VTL) §1214. The statute states that: "No
person shall open the door of a motor vehicle on the side available to
moving traffic unless and until it is reasonably safe to do so, and can
be done without interfering with the movement of other traffic, nor shall
any person leave the door open on the side of the vehicle available to
moving traffic for a period of time longer than necessary to load or unload
The opening of a car door into traffic in violation of VTL 1214 has been
found to be the sole proximate cause of an accident and requires the granting
of summary judgment against the person who opens the door into traffic.
For example, in
Montesinos v. Cote , 46 A.D.3d 774, 848 N.Y.S.2d 329 (2d Dept. 2007), the plaintiff, Lisa
Montesinos, opened her door to exit her vehicle when her driver's
door made contact with a passing tractor trailer. In her claim against
the passing tractor trailer for injuries sustained, the court found that
the injured plaintiff's opening of her door into traffic in violation
of VTL 1214 was the sole proximate cause of the accident and dismissed
her case. See also,
Abbas v. Salav , 73 A.D.3d 1100, (2d Dept. 2010),
Williams v. Persaud , 19 AD3d 686 (2d Dept. 2005).
In contrast, the courts seem reluctant to grant judgment to a cyclist who
is injured when a door is opened into his path. In
Villa v. Leandrou, 31 Misc.3d 1237(A), 932 N.Y.S.2d 764 (Sup. Ct. Queens Co. 2011), the court
refused to grant plaintiff Alfredo Villa, a cyclist, summary judgment
in a "dooring" crash case. Although the court found that the
defendant violated VTL 1214 by opening her car door into traffic, it still
left open questions of fact as to whether the cyclist's actions caused
or contributed to the accident requiring denial of summary judgment to
the plaintiff in the issue of liability.
It's clear that the person opening the car door into the path of traffic
of a cyclist can be found responsible for the happening of the accident,
but they are not alone. Vehicle and Traffic Law 388(1) will also make
the vehicle's owner vicariously liable for the acts of its passenger
in causing the crash. For example, in
Cohn v. Nationwide Mutual Ins. , 286 A.D.2d 699, 730 N.Y.S.2d 152 (2d Dept. 2011), a cyclist brought a
claim against a taxicab owner as a result of its passenger opening the
cab's door into the path of cyclists, causing injury to the rider.
The Second Department found that the passenger's act of opening the
taxicab door in order to exit the vehicle "constitutes use and operation
of a vehicle pursuant to Vehicle and Traffic Law §388 and, accordingly,
an owner of a taxicab will be liable for the Plaintiff's injuries."
The Court of Appeals, in addressing the application of Vehicle and Traffic
Law §388 has held that it is not limited to situations where the
vehicle is in motion, as the inclusion of loading and unloading of a vehicle
fits logically with the interpretation of the law and claims predicated
under §388(1) of the Vehicle and Traffic Law.
Argentina v. Emery World Wide Delivery , 93 N.Y.2d 554, 693 N.Y.S.2d 493 (1999).
Having established who is responsible for the act of "dooring"
a cyclist, the next issue then becomes applicable coverage for the occurrence.
While the owner may be responsible for the act of its passenger, the Court
of Appeals has held that the vehicle's liability policy may not indemnify
and defend the negligent passenger for his violation of VTL 1214. In
Kohl v. American Transit Insurance , 15 N.Y.3d 763, 906 N.Y.S.2d 809 (2010), passenger Christopher Kohl was
exiting a New York City taxicab when he opened the taxicab's door
in the path of a cyclist. The cyclist brought a claim against Kohl and
others for injuries sustained in the crash. The Court of Appeals, affirming
the Appellate Division, held that Kohl was not an insured under the taxi
owner's policy of automobile liability insurance. The policy said
that it "shall inure to the benefit of any person legally operating"
the insured's vehicle in the business of the insured. The word "operating"
cannot be stretched to include passengers riding in a car or opening the
door. As such, the court refused to require American Transit, the taxi's
insurance company, to defend and indemnify the passenger for the act of
opening the door into traffic in violation of VTL 1214.
Vehicle and Traffic Law §1214 establishes a clear statutory violation
under New York state law, and is helpful to cyclists throughout the state.
However, within the confines of New York City, other accident scenarios
involving a "dooring" by a cab or private vehicle may find the
rider predicating its case under sections of the Traffic Rules and Regulations
of the City of New York as well.
Section 1642 of the VTL authorizes the City of New York by local law to
supersede the provisions of the VTL, including those that regulate parking.
Somersall v. New York Tel. , 52 N.Y.2d 157 (1981). However, pursuant to this authority, the City of
New York has not superseded VTL 1214 (See N.Y.C. Traffic Rules and Regulations§4–02
[e]; 34 RCNY 4–02[e]) and the statute remains binding on motorists
within the city.
There are several examples of applicable New York City codes that can apply
to a "dooring" crash. For instance, Section 4-08(e) of the Traffic
Rules and Regulations prohibits the stopping, standing or parking of a
vehicle within a designated bicycle lane. If a vehicle illegally stops
in or adjacent to the bike lane, and the vehicle's door is opened
into a cyclist's path, this should create a sufficient code violation
to be submitted to a jury. Another example of a potential code violation
is §411(c) which requires "taxis while engaged in picking up
or discharging passengers must be within 12 inches of the curb or parallel
thereto." The rule also prohibits the picking up or discharging of
passengers within a bicycle lane. Again, if the door of a cab is opened
into a cyclist path, while engaging in the picking up or discharging of
passengers in violation of the regulation, this violation of the traffic
rules can be charged in addition to VTL 1214.
When representing the cyclist, it is much more advantageous to have the
jury charged on a violation of the Vehicle and Traffic Law as a violation
of the VTL constitutes negligence as a matter of law and the jury "cannot
disregard a violation of the statute and substitute some standard of care
other than that set forth in the statute." See, P.J.I. 2:26; see also,
Collazo v. Metro .
Suburban Bus Auth ., 68 AD3d 803, 804 (2d Dept. 2009);
Tepoz v. Sosa , 241 A.D.2d 449 (2d Dept. 1997).
By contrast, violation of a municipal ordinance would only constitute "some
evidence of negligence."
Elliot v. City of New York , 95 N.Y.2d 730, 734 (2001). Where appropriate, the jury would be charged
that, if a party violated one or more provisions of the New York City
Traffic Rules and Regulations, the jury "may consider the violation
as some evidence of negligence, along with the other evidence in the case,
provided that such violation was a substantial factor in bringing about
the occurrence." (See Pattern Jury Instruction 2:29; see also
Ferrer v. Harris , 55 N.Y.2d 285, 293 (1982);
Schneider v. Diallo , 14 AD3d 445, 446 (1st Dept. 2005)).
Neither the Vehicle and Traffic Law or Regulation are mutually exclusive
and the jury can be charged on both the VTL as well as a municipal ordinance
as long as the two statutes are not essentially consistent with each other.
Fox v. Lyte, 143 A.D.2d 390, 532 N.Y.S.2d 432 (2d Dept. 1988).
However, whether a provision of the Vehicle and Traffic Law or a provision
of the New York City Traffic Rules and Regulations is at issue, the jury
should not be charged as to an alleged violation "if the statute
[or local rule] is intended to protect against a particular hazard, and
a hazard of a different kind is the occasion of the injury."
Narducci v. Manhasset Bay Assocs. , 96 N.Y.2d 259, 267 (2001),
DiPonzio v. Reardon , 89 N.Y.2d 578, 584–85 (1997). It will be incumbent upon the attorney
representing the cyclist to present to the trier of fact sufficient proof
that the alleged statutory violation is applicable to the facts of the
crash and that it was the intent of the statute to protect the cyclist,
among others, from harm.
A "dooring" crash, which seems simple at first glance, creates
a wealth of legal issues not normally contemplated in a bike vs. car collision.
When representing a cyclist, a practitioner needs to be familiar with
both the state and local laws of its jurisdiction, and be able to present
a compelling case to take advantage of the applicable laws that are in
effect to protect cyclists in New York.
Daniel Flanzigis a partner at Flanzig and Flanzig. He can be reached at