Phillips Law Firm Blog

By Steven M. Magas[1], Bikelawyer@aol.com - 513-484-BIKE

This year, I've written about goofy court decisions, odd crashes, the odd concept of "conspicuity" and motorcycle accident reconstruction. But, what should you do if you are actually involved in a crash? What kinds of things, which MANY people do, can actually HURT you in any claim arising out of the crash? This month, we'll take a look at the scene of your crash and the time immediately afterward. What should you do, if possible, before you leave the scene? What should you do SOON after any crash? A separate article will discuss the care and feeding of personal injury claims - just what ARE your rights under the law? What can you recover? I'll give you my take on the age-old question: Do You Really Need a Lawyer? For now, though, let's just look at the legal stuff that pops up when you crash!

Let's start with some assumptions. You are riding along and another motorist screws up - they don't see you, they turn left in front of you, they cut you off, they rear-end you, sideswipe you or otherwise negligently enter your right of way causing a crash. One minute you're riding, the next you're sliding!! What do you do?

In my experience, a rider's first words after a crash are often "How's my bike?" However, first, and foremost, understand that in ANY crash you are likely to get an "adrenaline rush." This can cause you to underestimate your injuries and jump up to confront the idiot who just clobbered you. please do try to AVOID this approach. Understand that you may be hurt, hurt badly in fact. Stay still and do a quick self-assessment - can you feel pain? Are you bleeding? Can you feel your extremities - move your fingers/toes - speak? Are you seeing double? Do you have a headache? You may be dazed, confused, scared. You should remember that even if you can move your head, you may have suffered a serious neck or back injury. Traumatic brain injuries, even slight or "mild[2]" ones, can be extremely serious. You may not even realize that you lost consciousness. EMT's are told to NOT remover your helmet until a neck injury is ruled out, unless they need to start an airway. The reason? The risk of a making a neck or back injury worse.

So, what should do FIRST AND FOREMOST after you find yourself in a crash? Go back to Kindergarten and do a "Stop & Think!" Get Your Emotions Under Control. Assuming you are not lying on the interstate with cars zooming by, you should just sit there/lie there and make sure you are SAFE!

Is your cell phone on you? Pull it out and CALL 911 right away. Get the police to the scene. Get an ambulance to the scene. Do NOT let ANYONE convince you that the police don't need to be called!

If at all possible, do NOT move your bike until police arrive. An accident scene should be treated as a crime scene. Objects should be left where they ended up after a crash. Object thrown from the bike may provide clues to how the crash happened. Think "CSI: Your Town" and preserve the integrity of the scene. The "debris pattern" is one of many factors which accident reconstructionists look at when trying to figure out what happened and who was at fault. Once the bike or other vehicle is moved or the debris is picked or swept up, the "crime scene" becomes tainted and useless. As you know from "CSI" critical evidence is lost when the crime scene is messed up, so keep yours pristine as long as possible. If things ARE moved, try to make note of where things were so you can accurately report this later.

If you are able to move around and talk, check on the other individuals involved in the crash. Are they OK? Do they need help? Again, make sure the police and EMT's are on their way.

Did the other motorist stay or flee? In England recently, a group of school children foiled a bank robbery by chanting the license number a witness noted until one of their mates ran into the school for a paper and pencil! If the motorist who clobbered you tries to leave the scene, get all possible information - car year/make/model, license number or any part of it, descriptions of the driver and passengers. Leaving the scene of a crash, even a "minor" one is a crime in every state in the union. Further, it tends to be evidence of liability or, at worst, criminal intent and a total lack of respect for the safety of others!

Get the following information at the scene - WRITE IT DOWN:

IDENTIFY DRIVER/OWNER of VEHICLE & WITNESSES

· Driver Name, address, phone -home/cell/work. Driver's License number. SS# if on the license. All possible contact information.

· Owner Name, address, phone - home/cell/work, if it is different from the driver.

· Vehicle Year, make, model, VIN#, color, registration paperwork

· Driver's Insurance information Name of insurer, policy number & limits. Name of insurance agent [many people think their "agent" is their "insurer". The "agent" sells insurance. Independent agents sell for many different insurance companies. "Captive" agents, such as those for State Farm, only sell one company's insurance.

· Owner's Insurance Information [may be in the glove compartment if the driver does not have it. Call the owner from the scene otherwise]

· Driver's Employer Find out if the driver was "working" at the time of the crash and get the name, address, phone of the employer.

· Passengers Name, address & phone numbers of all

· Witnesses Get the Name, address, phone of all witnesses. If they do not want to get involved, write down car make/model & license number as well as a good description.

NOTE THE CONDITIONS

· Note the time and place of the crash, including the road and nearest address or intersection [or GPS if you got it!]

· Note the topography of the roadway, sketch or photograph if it is important.

· Road conditions - wet, slick, icy, snowy, gravel, condition of pavement

· Visibility - Sunny, cloudy, fog, snow/sleet -- Remember conditions change quickly - get it written down right away. Was the sun in the other driver's face? How hard was it raining? [I tried a case for several days based solely on a "factual dispute" between the two drivers over the amount of rain and level of visibility! ]

· Note any traffic controls - Lane lines, center lines, stop/yield signs, lights, school zone, warning signs, etc.

· Prepare a sketch of the location of the crash, the endpoint of the vehicles, gravel, slick spots, etc.

· Note anything about the other vehicle which may have contributed to the crash as well as crash-related damage

PHOTOGRAPHS

· Photographs are critical to virtually every case. In today's digital world, with 5.0 megapixel cameras available for $100.00 or so, it is ludicrous for people with a claim for property damage or injuries to NOT have excellent photographs as soon as possible!

· Take scene photos from many angles - the rider's perspective, the other guy's perspective. Show skid marks, signs, lights, etc. Take photos at the same time of day.

· Photograph your bike carefully. Again, take a lot of photographs from many angles.

· You can NOT take too many photos!

SOME DO NOTS:

· Do NOT discuss what happened - the facts - with anyone before the police arrive.

· Do NOT exchange anything other than personal and insurance information with the other motorist.

· Do NOT apologize or acknowledge fault in ANY way.

· Do NOT argue with anyone about what happened.

· Do NOT say "I'm OK" or words to that effect. [DO make note of any statement the other motorist makes relative fault, apologizing for causing the crash and the like.]

· Do NOT sign anything from anyone other than the police officer.

· Do NOT talk to ANYONE about your view or recollection of the crash except the police officer - this especially includes EMT's, witnesses, passers by, and the other driver.

· Do NOT discuss your insurance, prior claims, your ongoing worker's comp. claim, your prior back injury, your divorce, your money problems or the fact that this is the third time some idiot has hit you or any other similar "historical" events with anyone.

· If you have a "look" that screams "bad ass biker" [and you KNOW who you are] DO NOT act in a way that corroborates that image - be nice, sweet even, caring and empathic. The perceptions others get of you will effect what they say and "remember" later. Believe me, if their only image of you is of a big, mean-looking, leather clad "biker" screaming at witnesses who disagreed with his/her version of the facts, you can bet they will be influenced against you!

· Do NOT try to ride home if you are hurt, dazed, confused, or looking at a bike with cracked parts and bent wheels!

This is the beginning, and most critical part of preparing for a claim. To get good information at this stage is critical. "GIGO" - or "Garbage In/Garbage Out" is very true when it comes to reconstructing what happened and who was at fault from a police report. Next month I'll discuss what to do with this information, how personal injury claims "typically" work and steps to take to maximize the value of your case!

GOOD LUCK AND GOOD RIDING!

[1] Steve Magas is an avid motorcycle rider and Ohio trial lawyer who has been protecting the rights of those who ride for more than 25 years. He writes regular articles on motorcycle safety and legal issues for various publications. Steve is a year round motorcycle commuter and tourist who is often found on his 2004 BMW R1150Rt on his way to work, to court, or heading to a gig with his classic rock band, Saffire Express, with a trumpet case strapped on the bike!  Steve and his new bride just completed their first bike trip - to the North Coast of Indiana and into Chicago over the 4th! 

[2] A doctor, when asked to confirm on cross-examination by a snarly defense lawyer that the injured plaintiff's back injury was "mild" is said to have smartly replied, "Well, that depends on if it's MY back or YOURS?"

By Steven M. Magas [BMWMOA Member #121590][1], Bikelawyer@aol.com - 513-484-BIKE

I've never ridden in Europe. it's something I'd love to do someday. Motorcycling in Europe seems to be treated differently than here in the U.S. Gas prices overseas have been much higher than U.S. gas prices for many years. A government study compared premium gas prices, in US dollars, for six European countries, and the U.S. from January 1996 [we paid $1.27/gal .sigh . and they paid ~$4.00/gal] to June 2008 [we paid $4.31/gal, they paid ~ $9.00/gal!]

The use of motorcycles as a primary mode of transportation seems to be more accepted and widespread in Europe. Perhaps $9.00/gal is the "tipping point" where people start riding to save money on gas? Perhaps the fact that many European cities are far less "car friendly" than U.S. cities plays a role. Since all of Europe fits into the state of Texas, maybe the fact that you can climb on a bike, ride a few hours and "see the world" plays a role? Maybe it's those crazy sections of the Aubobahn which have abandoned the "speed limit" concept? Perhaps they just "get it" - >Bikes = FUN!

In addition to bikes being accepted on the roads and taken seriously as a mode transportation, Europeans also take their law enforcement pretty seriously too. In Belgium, for example, a speeding ticket can cost anywhere from 60 to 2500 Euros which, at the current exchange rate, is, like half a million dollars. Well. OK. an exaggeration, perhaps, but at today's exchange rate a 2500 Euro fine is a whopping $3,875.00! Speeding too far over the limit will not only cost you your cash, but also your BIKE, as many European countries give cops the power to impound a vehicle if the speeding violation is too far over the limit!

So what do the joys and risks of riding in Europe have to do with life in the U.S.? And what's this about "MAIDS" keeping you safer?? Lemme tell ya..

"MAIDS" is an acronym, of course - for "Motorcycle Accident In-Depth Study." This study involved taking a look at 921 accidents - and when I say "a look" I mean an incredibly detailed, close-up, microscopic "look." They didn't just read the police report and say, "Oh yea, it was the rider's fault." Instead, more than 2000 accident variables were cataloged and coded. A full reconstruction of each of the 921 crashes was prepared. The vehicles were inspected. Witnesses were interviewed. They frequently obtained medical records for injured riders and passengers. From this data, the researchers attempted to identify as many human, environmental and mechanical factors playing a role in causing the crash as they could find. This is a monumental effort to try to understand what factors contribute to motorcycle crashes!

In ANY "study" it's always good to ask "Who's doing it" and "Why" in order to try to sniff out any bias or predetermined outcomes. For example, studies of drugs by the companies who make them and want you to buy them always seem a bit "iffy" to me. Studies of motorcycle crashes by insurance industry groups bent on passing a helmet law are also questionable. MAIDS was co-funded by the European Commission, and claims to be the "only database entirely devoted to PTW accidents." ["PTW" is the term used in the study for "Powered Two Wheelers" such as motorcycles and mopeds/scooters]. The European Commission is the body created to represent all members of the European Union and is responsible for implementing common EU policies.

So, what did they find out?

Well, here's a starter - the OBJECT MOST FREQUENTLY STRUCK in a motorcycle accident was.. Drum roll please. a passenger car! As Gomer Pyle used to say, "Surprise . Surprise....Surprise!

But what about the Real Results of this study? Well, here's a few.

Ø The primary cause of most of the 921 accidents was "human error" the most frequent being the four-wheeled cager's "failure to see" the motorcycle within the "traffic environment due to lack of driver attention, temporary view obstructions or the low conspicuity of." the motorcycle.

Ø The second most frequently struck object was pavement - either due to a single vehicle crash or a maneuver to avoid impacting another vehicle.

Ø The majority of the crashes occurred in urban settings.

Ø Travel and impact speeds of the motorcycle in most crashes were relatively lower than I would have expected -less than 30 mph in 70% of all crashes!

Ø A KEY finding, in my mind à 90% of all risks to the motorcycle operator, both vehicular and environmental, were IN FRONT OF THE RIDER prior to the crash.

Ø In 37% of the crashes, motorcycle operator error was the primary contributing factor.

Ø In 50% of the crashes error by the car/truck operator was the primary contributing factor.

Ø 70% of the car/truck driver errors involved the "failure to see or perceive" the motorcycle

Ø Interesting info - car drivers who had motorcycle licenses were FAR less likely to crash into a bike!

Ø Among secondary contributing factors, motorcycle operators failed to see other vehicles and

Ø Motorcycle operators also made a large number of faulty decisions; i.e., they chose a "poor or incorrect collision avoidance strategy" which contributed to the crash

Ø Two self-inflicted factors also increased the motorcyclist's risk of crashing:

o Alcohol use

o Unlicensed operator illegally riding a bike that, under European law, required a license.

Ø Older riders were "under represented" and younger riders were "over represented" - conflicting with data found in other studies, and U.S. crash data released by the NHTSA each year.

Ø 18% of car drivers, and 8% of motorcycle riders were found to have committed traffic control violations.

Ø Less than ONE percent of motorcycle crashes were caused by technical problems on the bike. Almost all of these relate to TIRES! [So Inspect That Rubber, people!]

Ø 73% of motorcycle operators attempted some type of collision avoidance maneuver prior to impact, with 32% experiencing a loss of control as a result.

Ø Helmets - they are mandatory throughout Europe and 90% of riders had them. However, almost 10% of the helmets CAME OFF during the crash. Whether due to improper fastening by the rider or a failure of the fastener mechanism, this is a lousy number.

In many European countries, licenses are required to ride bigger bikes. You also have to be older - you can't get an "unrestricted license" until you are 21. In Germany, the age is 25 and from ages 18-25 you are limited to smaller bikes for at least two years or until you get training and tested.

This study will form the basis of a number of future articles this year. The data collected is absolutely fascinating and is something we need to encourage our government and motorcycle groups and agencies to duplicate in the U.S.

In 1981, the "Hurt Report" was published - this was the last major in-depth study of factors leading to motorcycle crashes in the U.S. Harry Hurt and his staff took an in-depth look at 900 Los Angeles motorcycle crashes and analyzed an additional 3600 reports from around the country. The report and appendices are 800 pages or so.

In a 1999 interview, Harry Hurt said, "We had no idea that study would last so long. We always assumed someone would commission another, bigger study. As it worked out, no one ever came up with a contract. Nobody wants to do any new research projects."

The problem, of course, is that these things tend to get "politicized." Pro-Helmet groups want to skew things in favor of helmet laws. Anti-sport bike groups want to limit horsepower. Insurance companies, bike dealers, prosecutors, helmet makers, tire companies. they all have their reasons for wanting studies to come out a particular way. Plus, in-depth studies like this that go BEYOND simply reading the police report and accepting the officer's analysis, are very time consuming and expensive.

What I like about the MAIDS study is the depth of the investigation. They didn't just look at police reports listing brief conclusory statements - they interviewed witnesses and participants, looked at the roadway and the vehicles and collected some 2000 data points. The "In Depth" portion of the MAIDS acronym is very true!

There is a move afoot to fund another "Hurt-like" study in the U.S. The motorcycle industry committed $2.8 million to the project in 2007 to meet the matching requirements imposed by Congress. The AMA has committed money to the project and has a place online for ANYONE to toss a few bucks into its "FUEL THE FUND" pot! [http://www.amadirectlink.com/study/].

The US Study will use the same methodology as MAIDS - independent investigators are dispatched to accident sites in real time so they can collect in depth accident data. Like MAIDS, the US study will gather data on many crashes. The LA Times quoted Samir Ahmed, the Oklahoma State University engineering professor who is directing the US study as stating, "900 is the least we consider adequate from a statistical point of view." This allows investigators to get 20 times the amount of data than they can obtain from FARS [The US "Fatality Accident Reporting System"].

Future articles will explore the MAIDS study in more detail and compare the MAIDS results with the Hurt Report from 1981. Has anything changed in the past 27 years? Just looking at sales figures and checking out the Bike Nights at Quaker Steak and Lube and other local establishments tells me that motorcycling is more popular than ever - particularly with those of us who are. um. more experienced- yea, that's the ticket. There are more older riders now than there were 27 years ago, and more riders over 40 being killed. There are also a LOT more "bigger" bikes and a lot more urban crashes.

The U.S. study is still climbing through the bureaucratic process. HOPEFULLY, the study will begin in 2009 and by 2013 I'll be writing about the results of the US Study!

GOOD LUCK AND GOOD RIDING!

[1] Steve Magas is an avid motorcycle rider and Ohio trial lawyer with Phillips Law Firm, Inc.  Steve has been protecting the rights of those who ride for more than 25 years. He writes regular articles on motorcycle safety and legal issues for various publications. Steve is a year-round motorcycle commuter and tourist who is often found on Big Blue, his 2004 BMW R1150RT, riding to work, to court, or to a gig with his classic rock band, Saffire Express, with a trumpet case strapped on the bike!