Phillips Law Firm Blog

From The NEW YORK TIMES

May 13, 2009

Group Bicycling Goes to Court

Ashley Gilbertson for the New York Times Alaina Feltenberger was among the cyclists arrested during a Critical Mass ride through Manhattan in August 2005.

Updated, 3:25 p.m. | A trial began Tuesday morning in United States District Court in Manhattan to determine whether New York City may require groups of 50 or more bikers, pedestrians or “other devices moved by human power” to get a parade permit.

Plaintiffs in the lawsuit contend that the rule violates their First Amendment right of assembly and that the New York Police Department, in trying to crack down on Critical Mass rides over the past five years, has selectively enforced traffic laws and engaged in other forms of harassment in violation of the 14th Amendment.

The suit was filed by a diverse collection of riders and groups, including the Five Borough Bike Club, which organizes the annual Montauk Century and other large group rides; Kenneth T. Jackson, the Columbia University historian who organizes a yearly night tour of New York architecture by bike for about 250 students; as well as several individual cyclists who have at times participated in the monthly Critical Mass rides.

As testimony began in federal district court, the mood was dour among the small gathering of cyclists sitting on the left side of the bright wood and marble courtroom. The first witness for the plaintiffs, Madeline L. Nelson, had hardly finished testifying before many began predicting defeat.

“I’m not hopeful,” said one plaintiff, Elly Spangenberg, who in her retirement leads large rides for the Five Borough Bike Club.

Steven F. Faust, 62, another of the club’s ride leaders who described himself as an “unindicted co-conspirator,” blamed the judge, Lewis A. Kaplan, who Mr. Faust accused of prejudice against cyclists.

“First the verdict, then the trial,” Mr. Faust said, holding onto a red pannier as he stood in the courthouse hall. (He rode his bike to the trial.)

In an opening statement, a lawyer for the cyclists connected the amended parade rules and the police treatment of Critical Mass riders, calling the redefinition of a parade “a new tool to make Critical Mass illegal.”

The opening statement went on to describe how the permitting process for parades, which requires a leader and designated route, were not reconcilable with the monthly rides that, participants say, have no leaders and do not follow a predetermined path.

Later, city lawyers representing the Police Department successfully challenged much of Ms. Nelson’s testimony as secondhand knowledge. The city also focused on the parade rules as a serving “legitimate law enforcement objectives.”

By lunch, Barbara Ross saw the trial, which is expected to last several days, as an uphill battle.

Ms. Ross, the communications director for Time’s Up, a bicycling and environmental advocacy group, claimed there were “hints” from the judge that he thought 50 was a reasonable minimum to expect riders to get a parade permit.

“I’m not a lawyer, but it feels that the judge is being rough with the cyclists,” she added.

Though the origins of the lawsuit can be traced back to arrests and other activity during the 2004 Republican National Convention, the case is primarily a challenge to new rules adopted by the police in 2007 for “parades.” The change is seen by critics as an effort by the police department to more tightly regulate the monthly Critical Mass rides in Manhattan.

These rides — described by participants as leaderless — have been the source of escalating confrontations, suits and countersuits in the five years since the convention, when more than 250 cyclists and protesters were arrested.

The plaintiffs seek to overturn the new rules and return to the days when, as the complaint claims, Critical Mass rides were peacefully escorted by police officer and “there were few if any arrests” despite having “on some occasions included 1,000 or more participants.”

The complaint challenges both the “vague” and allegedly unconstitutional language of the parade law, and the behavior of the police with regard to Critical Mass rides in Manhattan. Similar rides in Brooklyn, the complaint said, are not given the same police treatment. The new parade definition reads, in part:

A “parade” is any procession or race which consists of a recognizable group of 50 or more pedestrians, vehicles, bicycles or other devices moved by human power, or ridden or herded animals proceeding together upon any public street or roadway.

The city, in its answer to the complaint, denied the allegations made by the plaintiffs. “In amending the definition of ‘parade’ … the Police Department did not violate any rights, privileges or immunities reserved to the plaintiffs by the Constitution or laws of the United States or the State of New York,” the City’s answer states.

Since the new parade law, riders have been arrested at Critical Mass rides.

The police commissioner, Raymond W. Kelly, said at the time the law went into effect, “We want the people who participate in these demonstrations to adhere to the law.”

Both Time’s Up and the Five Borough Bike Club, which arguably represent different constituencies in city’s cycling scene, are encouraging their members to attend the trial, which is expected to last several days.

The plaintiffs are represented by Debevoise & Plimpton, a large firm, which in pre-trial work deposed the highest ranks of the Police Department, including Commissioner Kelly and James Tuller, the commanding officer for patrol for Manhattan. The legal team takes up “an entire floor of the office,” according to Mr. DiPaola, though naturally the firm itself declined to comment on the case, and referred questions to Ms. Nelson.

Motorcycle Safety Strategies For a New Year

By Steven M. Magas, Ohio’s Bike Lawyer[1]

“Perception/Reaction Time” is a common phrase used by Accident Reconstruction Experts. From years of study and research we know that when you are motoring along and stuff starts to happen a period of time elapses between the start of bad stuff happening and the time your brain recognizes bad stuff is happening. This is your “Perception Time.” Once you perceive the bad stuff, there is another delay while brain tries to figure out what to DO, if anything, about the bad stuff it has now perceived.

One important finding of the Hurt Report is that by the time you recognize the danger, you probably have TWO SECONDS or less until impact. What you DO in those two seconds will lead to one or more of a long continuum of results – from nothing happening to you, to being scared, to minor or major injuries to death! A motorcyclist, no matter how skilled, is more likely to stay safe if she/he learns how to avoid problems before they develop, instead of how to react to dangers on the road once they pop up.

When I talk to motorcyclists about safety and how to stay alive on the road they generally want to brag about how well how they handle the bike or how they’ve had to “lay 'er down” to stay alive. However, relying on emergency braking to get you OUT of trouble is usually a horrible strategy and usually tells me that the rider is about 8-10 seconds behind the curve.

Don't get me wrong—learning how brake effectively is a critical skill every rider must develop and practice. It’s just that relying on emergency braking or swerving to save you is like having a plan to run out and buy a fire extinguisher the moment the house catches on fire. If the situation has deteriorated to the point that you are implementing your emergency plan, it’s probably too late to save you.

The Hurt study and others found that the average time from the event that starts the “collision sequence” (i.e., the start of the bad stuff happening, such as a car beginning a turn across your path) to the actual impact was 1.9 SECONDS. Seventy-five percent [75%] of riders had less than 3.0 SECONDS between the start of the accident sequence and the crash. THREE SECONDS.

Perception of the problem, remember, is only step one. Perception can be delayed if the rider is too busy watching the cute motorist to the left or worrying about a crashing 401K! Once the “perception” is achieved [i.e., the “Oh Crap” moment occurs], reaction time begins.

Most experts will testify that the average reaction time to traffic hazards at about 1.5 to 2.0 seconds, averaging around 1.7 seconds. A defensive back might be 1.0 seconds. A 51 year old lawyer with stuff on his mind, closer to 2.0. A young man trying to gain his balance while standing on the seat…well… let’s just leave THAT topic for another day…

Think about this - if you swerve, add another half-second for the time delay due to counter-steering and developing the correct lean angle before your motorcycle begins to head in the desired direction. These little delays leave almost no time for evasive action to succeed. Interestingly, roughly 30 percent of riders in the Hurt study took no evasive action at all. Perhaps there was too little time… perhaps they just froze. However, once you cross the magic mathematical boundaries of time and space, even highly skilled braking won't get you out of trouble – it may just slightly delay the beginning of your very rapid deceleration.

What does this mean? Let's say you're going down the boulevard at 30-mph – or 44 feet per second. You fail to notice that an SUV is about to turn left in front of you. When the big vehicle turns left across your path it is still 100 feet away. With your delayed reaction time of, say, two seconds, you’ve now covered 88 of those 100 fee and you’ve got exactly 12 feet to react and get the bike stopped! It ain’t gonna happen. The best you can hope for is that your panic braking slows you so the impact with the side of the SUV isn’t quite as severe. Even worse, when faced with death or a world of pain seconds away, the Hurt Report concluded that most riders do a miserable job of braking and swerving.

The Hurt Report found that riders with formal training (mostly California Highway Patrol and LAPD motorcycle officers, who had passed rigorous training course and spent hours per day on huge bikes) were no more likely to use the front brake than you or I when faced with death/life circumstances.

Instead of thinking you're going to save yourself with your lightning-fast reflexes and well-honed skills, you are MUCH better served by taking the advice of Jim Oullett, one of the authors of the Hurt Report, and working on learning and practicing strategies designed to keop you OUT of situations where you have to rely on reflexes and skills. Take a look at Jim’s 11 tips for the wise and use them to make 2009 your Safest Year Ever! Regular readers of this column will note that Jim hammers on many of the same points I try to make here each month!

11 TIPS FROM JIM OULLETT FOR SAFER MOTORCYCLING

1) CONSPICUITY. Do all you can to make it easy for car drivers to see you. Probably 90 to 95 percent of car drivers who screw up say they never saw the motorcycle. Car drivers don't want to hit you. Honest. But some of them need extra help to know you're there. Do all you can to make it easier for them to see you. Use your high beam during the day. High beam is more conspicuous than low beam. Trading that cool-looking black leather jacket for something bright wouldn't hurt, either.

2) Freeways are good; surface streets are bad. Areas around shopping districts are the worst. Limited-access roadways such as freeways are good because car drivers can't turn across your right-of-way, so use freeways as much as you can.

3) In busy urban traffic, stay in the mix with the cars. Not out ahead of them; not behind. When you go through intersections where cross-traffic wants to use the pavement you own, stay right next to a car's front fender so you're not in the driver's blind spot and use the car as a shield. This is especially true at night because it's even harder for car drivers to distinguish a motorcycle from nearby traffic. Many riders who get picked off are the ones 30 yards ahead of a big clot of cars, or 20 yards behind.

4) Move away from potential hazards. If you're alone when you come up to an intersection where a car is waiting to cross your path, the more lateral distance you put between your path and the other guy's starting point the better. For example, if you're nearing an intersection where a car coming from the opposite direction can turn across your path, move to a lane closer to the curb. It'll make it easier for the car driver to see you, and give you more time to react, which is probably even more important than skilled braking. The key is looking AHEAD 10+ seconds and recognizing potential hazards before they become REAL hazards!

5) Never assume the other guy has seen you. Keep your eye on a vehicle that's positioned where it could violate your right-of-way. When you've decided the other driver has seen you and you start looking farther down the road, that's the moment he'll choose to turn.

6) Take it easy when you're out carving canyons. As you approach a turn, pick out which rocks and trees look good to hit, because you don't want to hit the unfriendly ones (which, actually, are all of them). If you need a little extra time to run through this mental drill, let off the gas. And remember that if you hit a post-and-rail barrier, which is used to decorate the outside of a lot of curves, it will probably break every bone in your body.

7) No booze before riding. None. Ever. Your risk of causing your own crash skyrockets when you drink and ride. Riders with more than one beer in their systems are about 40 times as likely to crash as sober riders. And a drinker's favorite way to crash is by running off the road, which has a higher fatality rate than any motorcycle-car crash except head-ons because there are so many rigid fixed objects waiting to, uh, welcome you. Trees, fire hydrants, parked cars, culverts, the list goes on and on.

8) Avoid riding in the center of lanes on the freeway. It's safer than trusting the guy behind you not to rear-end you. In the Hurt study, more riders on the freeway got nailed from behind while staying in their lane than riders who crashed while lane-splitting. But don't go too much faster than the traffic flow and be really careful when coming up to a car with an open space in the lane next to it, especially if the lane with the space is moving faster than the one with the car.

9) Be patient with lost and distracted drivers. In residential neighborhoods, you should understand that the idiot in the car in front of you, the one who's poking along at 15 mph, is looking for an address. Cool your jets and hold back, because the second you try to pass him, he's gonna turn across your path into a driveway. The five or 10 seconds you lose waiting for this car to get out of your way is a lot less than the time you'll lose waiting for the cast to come off your leg.

10) Don't lay it down. You lose only about 8-10 mph every second you spend sliding on the ground while giving away your perfectly good skin. If you do a good job using both brakes, you can lose 15-20 mph every second you brake and save on band-aids, too. About the only time to put yourself down on the pavement is if you're on an elevated curve (like a freeway interchange) and you're about to hit the low outside wall. The wall is usually high enough to save your motorcycle but not high enough to keep you from flying off into the wild blue yonder. I've never seen a rider survive that fall. The government ought to raise those concrete retaining walls to at least chest-high.

11) A loud exhaust is not safer. By the time you're close enough for a car driver to hear you, he's already in your path. In fact, you run the risk that the driver will be so alarmed he'll stop dead in your path. On the other hand, loud exhausts sure work wonders for pissing off the people behind you and making 'em hate motorcyclists. If you're serious about staying out of an accident, make yourself seen, not heard. If you just gotta have a loud exhaust, find another excuse for it.

GOOD LUCK AND GOOD RIDING!!

[1] Steve Magas, Ohio’s “Bike Lawyer,” is an avid rider and Ohio trial lawyer who has handled more than 150 “Bike Cases.” Steve’s practice focuses on representing riders injured or killed in crashes caused by errant motorists, dogs or faulty products. Steve rides a 2004 BMW R1150RT and is a year round commuter riding tens of thousands of miles each year. Steve offers a FREE CONSULTATION ABOUT YOUR CASE. You can reach him by calling

513-484-BIKE or sending him a note at BIKELAWYER@AOL.COM.

The First Crash & The First Laws:

A History Lesson With A Moral Today

By Steven M. Magas[1]

In 2007 Velo Press released Bicycling and the Law: Your Rights as a Cyclist. The book was the brainchild of former Olympic cyclist-turned-lawyer Bob Mionske.

Bob & I have corresponded via email for several years on numerous “bike law” issues. When he found himself running up against some tight publishing deadlines he asked me to contribute some work on the book. As the result of writing a few chapters, Bob listed me as a co-author.

-Lance Armstrong wrote the Foreward, noting that in the book “…you can find practical advice for any problem you face as a cyclist, from protecting your bike against theft, to fighting a traffic ticket, to prosecuting harassers…” like the one who tried to run Lance over!

Others who have praised the book include Rep. James Oberstar, one of cycling’s “stars” in the House of Representatives, George Hincapie, from the Disovery Channel Cycling Team, the Bicycle Transportation Institute and the National Center for Bicycling and Walking.

The book starts off with an outstanding story – the story of the first recorded automobile accident. It occurred on a bright, sunny Memorial Day – May 30, 1896. On that auspicious day Cosmopolitan magazine [yes, THAT Cosmo… ] had sponsored a race of horseless carriages. In it were four “Duryeas,” a Booth Rogers and, from Paris, an Armstrong. After a parade of the participants, the race began.

Mr. Henry Wells, of Springfield, Massachusetts, was driving a Duryea Motor Wagon near Broadway and West 74^th Street when he apparently lost control of the Duryea and began zigzagging down the roadway. Unfortunately, he collided with another vehicle, injuring Miss Evylyn Thomas. The police, not yet experienced in vehicular crashes, arrested Mr. Wells and held him pending word on Ms. Thomas’s condition. She suffered a fractured leg, but police were told that she was soon recover.

So why on earth is this crash of any interest to cyclists? Well, the key fact left out in the recitation of facts above is that Miss Evylyn Thomas’s vehicle of choice was… a bicycle!

Yes, Ms. Evylyn Thomas was one of the tens of thousands of New Yorkers out riding their BICYCLES that glorious Memorial Day. In fact, Ms.Thomas was riding a Columbia – one of the finest bicycles on the market at the time with a firm price of $100.00. Since the average monthly wage for commonfolk was around $30.00, the $100.00 price tag was quite a stretch for all but the old money, or new money, folks.

New York City, on Memorial Day of1896 reflected a transportation crossroads of sorts. Pedestrians shared the streets with horses, horse drawn vehicles, trolleys, bicycles and the new “automobiles.” Cycling was tremendously popular at the time, but cyclists were often viewed as scofflaws who flew by willy nilly without much concern for the rights of others. Pedestrians were frequently clobbered by cyclists, horses were scared silly and cyclists often crashed into each other. Speeding cyclists were known as “scorchers” and the New York Police Commission, whose chair was none other than future President, Teddy Roosevelt, organized a special squad of the first bike cops solely to apprehend “scorchers!”

Numerous bike crashes were reported for May 30, 1896 and five cyclists were arrested for scorching. Before fining the speeding cyclists the magistrate uttered words that, one could argue, have strong meaning on some group rides today: “Some of you people think that no one has a right in the streets but yourselves. I know I have had to run for my life to get out of the way of reckless bicycle riders…”

One big problem was that the Law had not developed fast enough to keep up with technology. Bicycles and motorized vehicles were not covered by any then current laws. With bicycles, cars, horses, carriages and the like all fighting for space, and trying to get people around as quickly as possible, broader legislation was clearly needed.

The New York legislature adopted a statute declaring that bikes were “carriages” and bicycle operators were entitled to the same rights, and had the same responsibilities, as drivers of horse drawn carriages. Courts brought bicycles into the legal system by granting them the same common law legal rights to use the streets as operators of other vehicles enjoyed, and thereby subjected them to the same legal duties.

The “Good Roads Movement” got its start around this time. In 1880, bicycle enthusiasts, riding clubs and manufacturers met in Newport, Rhode Island, to form the League of American Wheelmen [now known as the League of American Bicyclists]. The League became a national phenomenon and started publishing “Good Roads” magazine. Soon the club had a MILLION members and began pushing legislatures all over the country for road paving and improvements. The League gained considerable political clout as candidate’s positions on Roads was a hot button issue of the day!

The League lost members and power as the automobile became the vehicle of choice for America after the turn of the century, but the impact of the League’s push for good roads and good laws is still seen today. In many states, the Good Road Movement is credited with the first paved roadways and with insuring that the rights of bicycle operators to use the roads were recognized in state law. Today, in almost every state a bicycle is a “vehicle.” A bicycle has been defined as a “vehicle” in Ohio since the very first vehicular code was written.

The next time some idiot passes you and impolitely suggests that you take your riding elsewhere, you may want to retort with a reference to the Good Roads Movement and suggest that he/she thank YOU and your predecessor bicyclists for insuring that ALL vehicles had good, safe, paved roads on which to travel!

GOOD LUCK AND GOOD RIDING

[1] Steven Magas, The Bike Lawyer, is an avid cyclist and Ohio trial lawyer who has handled more than 150 “bicycle cases.” Steve represents cyclists who have been injured or killed due to crashes caused by errant motorists, dogs, faulty products or otherwise. Steve also writes on legal issues relating to cycling, sits on the Board of the Ohio Bicycle Federation, lobbies at the local, state and national level for laws and policies favoring cyclists and provides pro bono services to clubs and cyclists on important issues. Steve can be reached for a FREE CONSULTATION about your matter via email [BikeLawyer@aol.com] or phone [513-484-BIKE].

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[1], Bikelawyer@aol.com - 513-484-BIKE

Several recent topics have popped onto my radar recently. This month we'll take a look at a little of THIS and a little of THAT - some serious, some "Entertainment Tonite" stuff and. gasp. some humor!

HIPAA Recreational Injury Technical Correction Act

First the serious.

The American Motorcyclist Association has been tracking a problem in our health insurance system for many years. Certain health insurance companies have written provisions into health insurance policies that actually deny health insurance to motorcycle operators and other legal recreational users. How can they do that? How does it work? Are you at risk?

Insurers in various parts of the country have been discriminating against motorcyclists, ATV riders and others who engage in legal transportation and recreational activities. How it works is like this - the insurance policy says "If you get hurt, we'll pay your medical bills.. Except. If you get hurt while participating in certain recreational activities." Included on the list of "recreational activities" is riding a motorcycle!

How can this happen?

In 2001, Congress passed a bit of legislation that created a new legal acronym which virtually every lawyer, doctor, nurse, therapist and medical professional screams at - "HIPPA." HIPPA protects your privacy. It forbids the release of medical information without your consent. HIPPA actually did many good things to protect the average Joe. One loophole that insurance companies found, unfortunately, permits insurers to discriminate against those hurt while engaging in legal activities, like riding the bike!

If you are covered by such a discriminatory insurance policy, the ramifications are horrific. For example, if you are on your bike and your work buddy, covered by the same insurance, is behind you in his car when a drunk driver clobbers both of you, what do you think will happen? Well, under these discriminatory health insurance policies, the CAR driver will have all of his medical bills paid while he spends months recuperating. The motorcycle operator will get a nice letter from his health insurance company saying, "Sorry to hear about your bad luck. Unfortunately, because you were engaged in a recreational activity on our list, you were not covered at the moment the drunk driver hit you, so we're NOT paying your medical bills!"

What can you do? First, get on the AMA website [American MOTORCYCLIST Association, not the doctor's group] and go to the RIGHTS section. [http://www.amadirectlink.com/index.asp] Click on the 'RAPID RESPONSE CENTER" and read up on how the AMA is trying to protect your rights. If you punch in your zip code or hit the "TAKE ACTION" button, you will be directed to page that will allow you to write an email to your congressional representatives in the House and Senate expressing your support for pending legislation to FIX this loophole. This fix is supported by motorcyclists, snowmobilers, skiers, horseback riders and others who engage in perfectly legal activities.

So TAKE ACTION NOW!

ENTERTAINMENT NEWS

"Stars" who have wrecked on bikes!

Ann Margaret: She's an "accomplished rider" who suffered a broken arm and fractured ribs from a 2000 accident in Montana.

Gary Busey: Suffered head injuries in a 1988 crash after picking his Harley up from the shop.

Billy Idol: Ran a stop sign in 1990 and got clobbered.

Adrien Brody: The actor crashed into a car and skidded feet first through a crosswalk.

Bob Dylan: Did he or didn't he? Some say his "crash" in 1966 was staged to give him some time off. Others believe it was a near-death, life-changing experience..

Eric Estrada: Mr. CHiPs Himself suffered 12 fractured ribs and other injuries in a 1980 crash during production of the show.

Peter Fonda: Mr. Easy Rider lost ½ inch of his height after a 1985 crash. Says he STILL prefers a bike to a horse because he's "never been bitten by a bike."

George Clooney: He and flame-of-the-day were sideswiped in 2007 and made the frontpage on 16 continents both here and on Mars.

Johnny Knoxville: Almost had his testicles torn off trying a back flip with no skills to his credit!

Ben Roethlisberger: Big Ben took his Hayabusa out for a spin with no helmet and no license. He got nailed by a classic "left hook" with an errant motorist.

Arnold Schwatzenegger: In 2001, Ahhnold broke 6 ribs when his chest hit the bike's windshield as he swerved to avoid a car stopping ahead. His second crash occurred in 2006 when a car backed out in front of him.

Kellen Winslow: As a lifelong Browns fan, this one hurt. The kid got the money, bought the Big Bike, and suffered a nasty ACL injury when he HIT A CURB at 35 mph while practicing in a parking lot!

HUMOR

OK, I usually pass these up when they pop onto my computer, but this one is just TOO funny. The "Wave" always intrigues me. Who does it. How they do it. Why they do it, or NOT do it. I can't tell you who wrote these, or even where they came from, but I DO think you'll enjoy them.  Perhaps some of the humor is tooooo close to home, eh...??

In any event, here's the Last Word on The Wave..

Top Ten Reasons Why Harley Riders Don't Wave Back
10. Afraid it will invalidate warranty.
9. Leather and studs make it too heavy to raise arm.
8. Refuse to wave to anyone whose bike is already paid for.
7. Afraid to let go of handlebars because they might vibrate off.
6. Rushing wind would blow scabs off the new tattoos.
5. Angry because just took out second mortgage to pay luxury tax on new Harley.
4. Just discovered the fine print in owner's manual and realized H-D is partially owned by Honda.
3. Can't tell if other riders are waving or just reaching to cover their ears like everyone else.
2. Remembers the last time a Harley rider waved back, he impaled his hand on spiked helmet.
1. They're too tired from spending hours polishing all that chrome to lift their arms.

Top Ten Reasons Why Gold Wing Riders Riders Don't Wave Back
10. Wasn't sure whether other rider was waving or making an obscene gesture.
9. Afraid might get frostbite if hand is removed from heated grip.
8. Has arthritis and the past 400 miles have made it difficult to raise arm.
7. Reflection from etched windshield momentarily blinded him.
6. The espresso machine just finished.
5. Was actually asleep when other rider waved.
4. Was in a three-way conference call with stockbroker and accessories dealer.
3. Was distracted by odd shaped blip on radar screen.
2. Was simultaneously adjusting the air suspension, seat height, programmable CD player, seat temperature, and satellite navigation system.
1. Couldn't find the "auto wave back" button on dashboard.

Top Ten Reasons Why Sportbikers Riders Riders Don't Wave Back
10. Have not been riding long enough to know they're supposed to.
9. Going too fast to have time enough to register the movement and respond.
8. You weren't wearing bright enough gear for them to acknowledge you.
7. If they stick their arm out going that fast they'll rip it out of the socket.
6. They're too occupied with trying to get rid of their chicken strips.
5. They look way too cool with both hands on the bars or they don't want to unbalance themselves while standing on the tank.
4. Their skin tight-kevlar-ballistic-nylon-kangaroo-leather suits prevent any position other than fetal.
3. Raising an arm allows bugs into the armholes of their tank tops.
2. It's too hard to do one-handed stoppies.
1. They were too busy slipping their flip-flop back on.

Top Ten Reasons Why BMW Riders Riders Don't Wave Back
10. New Aerostich suit too stiff to raise arm.
9. Removing a hand from the bars is considered "bad form."
8. Your bike isn't weird enough looking to justify acknowledgement.
7. Too sore from an 800-mile day on a stock "comfort" seat.
6. Too busy programming the GPS, monitoring radar, listening to ipod, XM, and talking on the cell phone.
5. He's an Iron Butt rider and you're not!
4. Wires from Gerbings is too short.
3. You're not riding the "right kind" of BMW.
2. You haven't been properly introduced.
1. Afraid it will be misinterpreted as a friendly gesture

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 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!