The Washington Court of Appeals recently considered whether an expert in bicycling would be allowed to testify in a lawsuit alleging that a municipality caused her bicycle accident by failing to maintain a city street in a safe condition. The trial judge excluded the expert’s proposed testimony and dismissed the case without a trial. The Court of Appeals reversed, concluding that the expert was qualified to testify about the impact of road conditions on safe bicycling.

Facts of the Case

Pamela O’Neill was thrown from her bicycle while riding home from work. The accident occurred on Sidney Street in Port Orchard, Washington.

O’Neill was an experienced and skilled bicyclist who often took a new route between her place of employment and her home. This was her first time riding on Sidney Street. She saw a sign warning of a steep incline and noticed that the road was becoming uneven. She therefore rode with caution as she proceeded downhill.

While crossing an intersection, O’Neill’s bicycle unexpectedly changed direction as her handlebars were jerked to the right. O’Neill was thrown to the ground. Pictures of the accident site showed that the road was made from concrete slabs. The pictures showed gaps of up to 4 inches between the slabs and height differentials of up to 1 inch.

In a deposition, the city engineer testified that the City had no records of repairs performed at the intersection. It was obvious, however, that asphalt had been used at some point in an attempt to repair road damage. The engineer did not know when that last happened, and testified that maintenance crews sometimes repair minor road damage without making a record of the repair. The engineer also testified that seasonal changes in temperatures cause the concrete slabs to rise and fall.

O’Neill suffered serious injuries in the fall. She sued the City, alleging that the damaged road caused her accident. The City contended that bicyclists assume the risk of falling and denied any responsibility for the accident. Before trial, the court dismissed the lawsuit, concluding that O’Neill had no evidence that the City knew of any dangerous road condition or that it breached any duty to keep the road safe for ordinary travel. The court also concluded that the City had no special duty to make roads safe for bicycle riders.

Expert Testimony

O’Neill presented the court with an affidavit from James Couch, a certified bicycle technician and a United States Cycling Federation cycling coach. After describing the hazardous condition at the intersection, O’Neill provided the following expert opinions:

• The height difference between the concrete slabs was sufficient to cause even the most experienced cyclist to lose control.
• While potholes are relatively easy for cyclists to see, differences in height between slabs in a roadway are very difficult for cyclists to see.
• Road defects that run in the direction of the cyclist’s travel are particularly hazardous and height differences need not be great to cause a bicycle accident.
• The road defects at the accident site created a significant hazard to bicyclists.
• Once a bicycle wheel makes contact with the defect, even the most experienced rider would be challenged to keep control of the bicycle.
• The defects were present in a part of the road where experienced cyclists would normally ride.
• The City’s prior attempts to repair the road demonstrated that the City was aware, or should have been aware, of the defective condition.
• There was no evidence at the accident site or in the City’s records that the City made a comprehensive effort to repair the defect.

The trial court determined that Couch was an expert in bicycle racing and maintenance, but could not testify as an expert in road design or defects, bicycle accident reconstruction, or human perception of road hazards. The court struck Couch’s testimony as beyond his field of expertise. It then entered summary judgment against O’Neill, finding that she assumed the risk of falling by riding a bicycle and that she had no evidence to rebut the City’s assertion that it had no notice of the road’s defective condition.

Appellate Court’s Opinion

The State of Washington follows the Frye standard in determining the admissibility of expert testimony. In this case (as is true in most cases), the court’s ruling would have been the same even if Washington followed the Daubert standard. The question before the court was not the reliability of the expert’s methodology but whether the expert was qualified to render the opinions he proposed to give. Under either standard, experts may not testify outside the areas of their expertise.

The appellate court divided Couch’s proposed testimony into three parts. Some of the testimony related to Couch’s personal observations of the road conditions. The court held that those observations amounted to testimony about facts rather than expert opinion testimony. Since road conditions were relevant to the lawsuit, the trial court erred by excluding that part of Couch’s testimony.

The second category of testimony involved Couch’s opinions about a cyclist’s ability to see a roadway defect and the impact of such defects on the ability to maintain control of a bicycle. Given Couch’s experience and training, the court easily decided that Couch was qualified to render those opinions as an expert in bicycle riding. The trial court therefore erred by excluding that testimony.

Finally, Couch proposed to testify about repairs on the roadway and whether the City had notice of the road’s defective condition. Since Couch had no expertise in those areas, the court of appeals held that the trial court properly excluded that testimony.

Outcome of the Case

The court decided that Washington law requires a municipality to maintain its roads in a safe condition for all travelers, including bicyclists, not just motorists. While it does not need to maintain roads in perfect condition, it must maintain safe roads for all ordinary road users.

Washington law also requires a municipality to have notice of a dangerous condition and an opportunity to correct it before the municipality will be held liable for injuries caused by the condition. While O’Neill had no proof that the City had actual knowledge of the road defect, the court determined that the City may have had constructive notice that the road was defective. Constructive notice exists when a municipality should have been aware of the problem if it had exercised reasonable care in maintaining its roads.

Photographs showed weeds growing in the gaps between the cement slabs, suggesting that the gaps had been present for some time. The city engineer testified that the slabs rise and fall each season as the weather changes. The City should therefore have known of the likelihood that the road would need repair at some point but it produced no records showing when the road was last inspected. A jury could find from those facts that the City ignored a defective condition that had existed for a substantial time and that the City therefore had constructive notice of its existence.

Finally, the court held that bicycle riders assume the ordinary risks that are inherent in cycling, but do not assume the enhanced risks that are caused by another’s negligence. Couch’s admissible testimony established that the hazardous road condition was not one that an experienced rider could easily detect or avoid. That evidence would allow a jury to conclude that the City’s failure to maintain the road in a safe condition created an enhanced risk that bicycle riders do not assume when they decide to ride on a city street. Accordingly, the court decided that O’Neill is entitled to have a jury consider whether her evidence, including Couch’s expert testimony, establishes that the City is responsible for her injuries.