What happened to the man in June 2012 is simply scary. We have to imagine it like this: On a dirt track, a mountain biker rides towards a sign that is apparently attached to two vertical wooden slats in the centre of the track.
It is sign 260, the round sign with a red border on a white background and a motorbike in the centre in black, with a car underneath. It is the sign that blocks the passage for mopeds, motorbikes and other multi-lane motorised traffic. To the left and right of it: apparently free passage for cyclists.
Shortly before the obstacle, around eight metres away, the biker realises that the passage is blocked after all - too late. The emergency braking does no good, on the contrary. The biker falls headfirst into two Barbed wireswhich are stretched outwards from the shield into the undergrowth at a height of around 60 and 90 centimetres above the ground. They are intended to secure a wildlife rest area.
It was not until a good two hours later that a hunting tenant who happened to be passing by was able to free the biker, who was helplessly entangled in the barbed wire, and called the police and an ambulance. The subsequent diagnosis: fractured cervical vertebrae and paraplegia from the shoulders down.
BGH: Cyclists only have to expect clearly recognisable obstacles
The municipality and two hunting leaseholders are responsible for the wire blockage and are now being sued for over one million euros. As the victim was a soldier at the time of the accident, the Federal Republic of Germany is also literally sitting in the courtroom as a joint plaintiff.
The Federal Court of Justice has now made it unmistakably clear that cyclists do not have to expect obstacles on the path that are not recognisable or only very difficult to recognise - such as barbed wire stretched across the path!
This is because, according to the reasons for the judgement: "A barbed wire stretched across a path authorised for use by cyclists and not conspicuously marked is contrary to traffic regulations in both the literal and legal sense. Such an obstacle is completely unusual and objectively almost treacherous in view of its difficult recognisability and the danger resulting from this and its nature, so that a cyclist does not have to expect it."
The lower court had established that the wires were contrary to traffic regulations, but assumed that the cyclist had violated the so-called visibility requirement. This means that the cyclist's speed must be adjusted so that they can still stop in front of an obstacle that appears in the visible area of the road ahead.
The BGH rejected this and acquitted the biker of the charge of disregard. In the case of such invisible or barely recognisable obstacles, the visual driving requirement would have the unreasonable consequence of only being able to move at a minimum speed at all times in order to be able to stop in time even in front of such barriers.
Important: In the moment of (involuntary) shock, you don't make mistakes.
The Federal Court of Justice also came to the important conclusion that there is no right or wrong way to perform emergency braking. This is reassuring news and strengthens the basic rights of all cyclists, the weakest road users after pedestrians. The Higher Regional Court had accused the mountain biker of having caused the fall in the first place by allegedly reacting incorrectly.
However, Germany's highest court made it unmistakably clear that no normal citizen can be expected to have the reflexes of a stuntman, for example to prevent an accident: "The wrong reaction of a road user does not constitute a reproachable breach of duty if, in a dangerous situation that occurred through no fault of his own and was unforeseeable for him, he has no time for calm reflection and therefore does not do the right and proper thing to prevent the accident, but reacts objectively wrongly out of understandable fright."
On the downside, the BGH conceded that the consequences of the accident may have been aggravated by the fact that the biker "was using so-called clipless pedals instead of 'normal' bicycle pedals on the unpaved and uneven field path. However, this could justify an allegation of contributory negligence of 25% at most."
The Higher Regional Court must now retry the case under the new BGH guidelines.
Here is the link to the original press release of the BGH: https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2020/2020042.html?nn=10690868
Questions to: Dipl.-Ing. Dirk Zedler, bicycle and e-bike expert (www.zedler.de)
BIKE: Mr Zedler, is the up to 25 % personal negligence for the use of clipless pedals, which is being debated by the Federal Court of Justice, justified?
No, not at first glance. Without detailed knowledge of the case, it is of course impossible to make a final judgement. However, it is also not clear whether an expert with bicycle expertise was even heard by the court.
Has the accident-aggravating effect of clipless pedals been proven?
I am not aware of any studies showing that system pedals make accidents worse. In my more than 25-year career as a sworn bicycle and e-bike expert, with well over 10,000 expertises, this has neither been a commissioned topic nor has it become conspicuous in any way. We have no evidence that clipless or system pedals have caused comparable accidents or contributed to such injuries. On the contrary, it can even be assumed that system pedals give the rider better control on the bike. Earlier hook and strap pedals, which offered comparable control, led to far more frequent crashes. Flat pedals are less suitable for touring cyclists and pose a high risk of abrasions and cuts in the shin area if you slip.
Is it not rather to be assumed that a rollover, as it apparently must have happened, would also have happened with "normal" pedals during the emergency braking?
A rollover due to excessive deceleration during emergency braking is simply a physical phenomenon. The rider goes over the handlebars, whether with or without system pedals. In the 1990s, when there were many rollovers due to fenders unfolding, dozens of such accidents were investigated. There were terrible consequences, even at walking speed. None of these riders had system pedals on their bikes, but were travelling with normal touring pedals. None of these riders managed to jump off during the rollover in order to minimise the consequences of the accident.
What do you think will happen in the case now?
"In court and on the high seas, you are in God's hands" is a saying that unfortunately sometimes applies. For the sake of the biker involved in the accident, I hope that the court that has now been called upon will appoint a bicycle expert in combination with a doctor who can analyse the issue in greater depth. Only when the course of the accident and the injuries have been thoroughly analysed and brought together should the lawyers take further action.
Mr Zedler, thank you very much for answering our questions.
Sebastian Brust
Editor
