Ahhh, the things we do for science. If there are typos in this article it is only because my fingertips are still not quite working properly. I just walked in the door of the office – it’s 9:05am on December 9, 2006. According to the weather icon on my computer, it’s currently 9o at the airport and I don’t even want to calculate the 85…er… 65 mph wind chill!
I ride a 2001 BMW F650gs. It’s not a big, fancy bike – more like a dirt bike on steroids. I try to commute virtually year round, but took the day off yesterday when cars were sliding into ditches! Today it is cold, clear & dry – I thought I would ride to work, test some gear, tell you about it, and then take a look at an interesting Ohio Supreme Court case involving a motorcycle, a dying tree and the obligation of tree owners [and county commissioners] to know their trees!
PART I – Cold Weather Riding
Some people tell me I’m crazy to ride the bike in the winter. Yet, these same folks will pay thousands of dollars to fly to Utah and ski all day long in the mountains! As long as you are prepared for the risks of riding – be it summer, winter, clear, dry, rainy or snowy – you can ride anytime!
Now the huge difference between skiing and riding is clearly the level of exertion. Cross country skiers generate tremendous heat in their exhausting treks. Motorcycle riders sitting on their respective keesters, do not.
Warm clothing for riding is a must, and today’s fabrics and technology make it easier [albeit pricier] to stay warmer longer on the bike – even if you don’t invest heavily in “electric” clothing. Bruno Valeri writes on Cold Weather riding from Montreal. I like his analogy that the body’s temperature is “…very similar to a bike’s electrical system [i.e., charge vs. discharge]” without an alternator. The body starts out, bundled up, at 98.6o or more. Exposure to the cold and wind, with no new heat source, will lead to your experiencing the cold – the only variable is the length of time it will take. Valeri writes “Just like the battery voltage continuously decreasing, our body will get progressively colder.” This is what happened to my fingers this morning!
When I rode to ride this morning I included the following:
• Poly pro/wool socks
• Under Armour© running tights
• Tight Nike© Pro T shirt
• Dressy sweater & dress pants
• Heavy wool cardigan
• Tight-fitting Mountain Hardwear© windproof jacket
• Aerostich Darien Light Goretex ©motorcycle jacket
• Oxtar Goretex © touring boots
• Bikers brand Goretex Windstopper glove liners
• First Gear © brand winter gloves with 40g Thinsulate
• Aerostich electric Grip Warmers on the bike
• Columbia© brand fleece gator
• T408 brand Men’s snowboarding pants
You should have absolutely NO skin exposed. This is critical to cold weather riding. Your comfort and safety demand that you are alert and able to see, move and think quickly. If you are cold, tense and worried about hypothermia and frost bite, then you are less likely to appreciate the dangers ahead and have the ability to take the appropriate action. The Goretex elements of my gear help to insure that the wind stays OUT and the heat stays IN. The “tight” fitting tights and first layer are also great for keeping the heat close by. I find most office temperatures permit the comfortable wearing of these items.
One concession I make to the weather is to ride with the face shield down on the helmet. With the small windshield on my bike, the frigid air hitting my face causes concern. Other than my fingertips, however, I arrived this morning with no complaints. My gear retained my body heat excellently during the ride with the exception of my fingertips. I bought some 99¢ glove warmers which I may try tomorrow. If worse comes to worse, or I want to ride longer distances, I am probably going to have to bite the bullet and invest in some electric clothing. I’m a shopper, always looking for bargains. Other than paying the big bucks for the Aerostich jacket, I obtained just about everything else on sale at TJ Maxx or other discount stores.
Today, though, I store the gear in the corner of my office, swap out the boots for a pair of slip-ons I keep handy, and I’m ready for another day of bike lawyering! [As I wrote this, I realized that I forgot to pull the plug on the grip-warmers, so next month’s article was almost entitled “How to start a bike with a dead battery…”]
Part II – The Bike, The Tree and the Landower
On July 10, 1982, Melvin and Mary Heckert were riding their motorcycle in rural Stark County, Ohio. As they rode along, a dead tree limb suddenly fell off an overhanging tree and into their path. They hit the limb and a nasty accident ensued, causing severe personal injuries to both, as well as significant property damage to their bike.
The Heckerts sued the owner of the tree and the county. The Heckerts claimed that the landowner was negligent for permitting the overhanging limb to fall onto the roadway. As to the county, the Heckerts argued that the commissioners breached their statutory and common law duty to maintain the highway in a proper condition for travel. Both the landowner and the county moved for “summary judgment,” meaning that they asked to court to toss the case out before trial since, even assuming the facts to be true, there was still no liability. The Heckerts submitted expert witness affidavits and fought the motion, but the trial court granted summary judgment and dismissed the case. The Heckerts appealed all the way to the Ohio Supreme Court and the case reached the Supreme Court in 1984. The decision provides an interesting historical glimpse into the battles that waged between the liberal and conservative elements on the court in the 1980’s.
The Supreme Court in 1984 was an interesting group. It was a politically charged era and, even though judges are not supposed to be “Democrat” or “Republican,” those “in the know” knew which judges were more likely to favor the injured folks and which were more likely to rule against them. The seven member “Celebreeze Court,” as it was known, took pride in its decisions in the 1980’s which took Ohio law out of the dark ages and expanded the rights of those injured by the negligence of others. Many of these were “4-3” decisions, with Justice Holmes writing passionately conservative dissents. Unfortunately for the Heckerts, Justice Holmes apparently convinced three of his bretheren to rule with him in this case.
The Heckerts provided the affidavit of a tree expert to support their case. This expert stated that the tree in question had “large and rotted limbs” which extended over the roadway and that several limbs had already fallen prior to the crash. In his opinion, “***this tree has been decaying and has been in a stressful state for many years prior to July 10, 2082***”
Justice Holmes noted that the horticulturalist based his opinion on an examination of the INTERIOR of the tree, not the exterior. As such, he reasoned, there was no reason for the landowner to have realized the danger presented by the dead branches and no liability could attach. The three dissenting judges argue that the expert “***clearly states that the deterioration of the tree was visible and apparent***” long before the Heckerts’ crash. This sort of picking apart of the facts is very characteristic of the arguments between the judges on the “Celebreeze” court.
With regard to the County, Ohio’s statutory law provides that "* * * The board shall be liable, in its official capacity, for damages received by reason of its negligence or carelessness in not keeping any such road * * * in proper repair * * *." The Supreme Court noted two principles in the case law which has developed under this statute:
1. Liabilty only attaches in matters concerning the deterioration or disassembly of county roads and bridges and
2. Liability will NOT be imposed when the obstructions or interferences are unrelated to the conditions of the roadway.
Thus, liability has been imposed on the county for bridge collapses, ruts in the berm of the roadway, holes in the road or berm and a trench in the roadway. No liability has been found relative to a rock ledge on which a bridge abutment rests or to injuries sustained when a motorist hit a parked truck. There is also no county liability for tree limbs obscuring a stop sign, a bridge that is narrower than the approaching roadway, or snow removal.
Here, Justice Holmes wrote that the county is not liable when a branch from a tree falls onto the roadway. Again, the dissenters argue that the county has the same obligation to scour its roads for evidence of dangerous conditions. Here, they argue, the evidence was patent and obvious – the overhanging tree was a hazard. Again, the dissenters were in the minority and the court held, in a 4-3 vote, that the county wins.
This case does set an interesting rule. A landowner CAN be liable to a motorcycle rider if he permits hazards which are apparent and ignored. The disagreement between the judges, more political than factual, provides a window into the bigger rifts between the justices favoring an expansion of remedies to injured victims and those favoring reigning in such liability.
GOOD LUCK & GOOD RIDING!