The first thing I noticed was a blur of yellow to my left, and a split second later a bump on my arm and something brushing my leg. I had just crossed Fifth Avenue, heading east on 72nd Street on my bike. I was riding, as is my custom, as close to the parked cars as I could while minimizing the hazard of getting doored. It was about 10:10 on a lovely March morning and traffic was light.
I managed to stay upright as the cab swept by me. Alarmed and shaken, I screamed and the driver hit the brakes. Adrenaline pumping, I banged on the front passenger-side window and yelled that he had just hit me. He raised his arms in a "What am I supposed to do?" gesture of helplessness. His fare in the back seat leaned forward to say something and the driver pulled away. I made a mental note of the plate number. Catching the cab at the next light, I loudly proclaimed my intention of reporting the incident to the Taxi & Limousine Commission (TLC). The driver appeared unconcerned.
I deliberated long and hard about whether to press my case. The driver was probably just trying to make ends meet and save up a little by working grueling 12-hour shifts. Hell, I used to drive a cab myself. But I also thought of my responsibility to other cyclists. If the driver had swiped me on a four-lane boulevard in broad daylight, couldn’t he do the same to someone else, with perhaps a devastating outcome? I decided to file a complaint.
The hearing took place several weeks later. I had a choice to testify by phone or in person in Queens (I live and work in Manhattan). Not wanting to take a half-day away from work, I opted for the surreal experience of being sworn in by a judge while sitting at my own desk. The driver, through his lawyer, did not dispute that he had hit me. His only defense was that he hadn’t realized he had done so. To me, it seemed an open-and-shut case: Driver admits hitting cyclist, driver will face some consequences.
The judge’s ruling came in the mail a few days later.
"There was no allegation of speeding or reckless driving during the hearing and certainly no proof of same," it read. "Thus a prima facie case for the violations charged has not been established and the Summons and charges are dismissed."
In effect, the judge was saying that it’s okay for a cab driver to strike a cyclist as long as there is no evidence of reckless driving. But, I wondered, isn’t the mere fact that a cyclist was hit "prima facie" evidence that the driver failed to exercise due care?
I sought out the opinion of my friend and cycling attorney par excellence, Adam White. "While I’m sure it was upsetting getting brushed by this guy," he told me, "a judge is left with determining findings based upon the evidence presented. This guy presented a reasonable case and took it seriously enough to hire an attorney." Adam said the TLC appeared to be applying a recklessness standard and that I had not alleged recklessness. "Aside from that," he added, "the civil justice system is available to people who are injured or suffer property damage." Adam also noted that my case might have been strengthened had I shown up in person.
Perhaps I should have appeared in person, but it was undisputed that the driver hit me through no fault of my own. Without a finding of recklessness or negligence, any such case would not appear on a driver’s record. Couldn’t a driver repeatedly sideswipe cyclists, throughout his career presumably, and pay no price? What if this particular driver has, say, a vision problem that causes him to repeatedly come close to or brush more vulnerable road users? What if he is simply habitually careless? It appears that there is no mechanism within the existing TLC system to address such possibilities.
My guess is that few cyclists would pursue the matter as I did. For anything to appear on such a driver’s record, there would have to be an injury serious enough to suggest to a TLC judge that recklessness might be involved. But by then it could be too late.