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].

BIKE LAW 101

DOGS: WITH FRIENDS LIKE THESE…

By Steven M. Magas, The Bike Lawyer[1]

Dogs are said to be man’s best friend,

I’ll grant you all that much…

It’s just hard for me to call him “Pal”

While he has my calf for lunch!

I love dogs… I’ve got two mutts which together constitute roughly 150 pounds of sniffing, drooling, chewing, running, barking energy. However, dogs continue to be a huge problem for Ohio cyclists, particularly in our rapidly changing “rural” counties.

What are Ohio ’s “dog laws?” Is there a state-wide “leash law?” What is the so-called “One Bite Rule?”Who do you complain to about dog problems? How far can you go to protect yourself if you are attacked by a dog while riding your bike? What can your local club do help to protect ALL riders? What are your rights if you get hurt?

OHIO ’S DOG LAWS

Ohio Chapter 955 of the Ohio Revised Code is aptly titled, “DOGS.” Most of the statewide statutes governing dogs in Ohio are covered here, or in the case law that has developed when courts try to interpret those laws.

EVERY dog in the State of Ohio that is “more than three months of age” must be registered in the county in which the dog is kept, owned or harbored. Tags are to be issued and must be worn. Failure to buy the tag or have the dog wear it renders the dog subject to “impoundment, sale or destruction” and can lead to a fine of up to $75 in some counties.

There is no statewide “leash law” in Ohio, per se. However, Ohio law does state as follows with regard to the owner’s obligation to control the dog:

(C) Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following:

(1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or secure enclosure to prevent escape;

(2) Keep the dog under the reasonable control of some person.

That word, “supervision” is tough. If the dog is running amuck and someone is watching the dog run amuck, is the “supervision” test met? I think not. Clearly, the aim of the statute is to confine and restrain the dog from causing injury or damage. All of the other items on the list provide a definite limitation of movement – leash, tether, fence, enclosure – and the purpose of the list is to “prevent escape.”

There are two very special types of dogs defined in the code which are of GREAT interest to all riders: “dangerous dogs” and “vicious dogs.”

A “dangerous dog” is one that has:

“. . . chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, while that dog is off the premises of its owner, keeper, or harborer and not under the reasonable control of its owner, keeper, harborer, or some other responsible person, or not physically restrained or confined in a locked pen which has a top, locked fenced yard, or other locked enclosure which has a top. . .”

A “vicious” dog is a dog that:

4)(a) *** without provocation and subject to division (A)(4)(b) of this section, meets any of the following:

(i) Has killed or caused serious injury to any person;

(ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog.

(iii) Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.

Compare the language used to define “dangerous” and “vicious” dogs. Dogs can be labeled “dangerous” if they simply look mean or attempt to bite or “otherwise endanger” any person. I would certainly argue that dogs which come after bicycles are “endangering” the rider and are “dangerous” dogs. “Vicious” dogs on the other hand are dogs that have hurt someone.

These statutory provision provide an opening for you and your local club to help protect ALL RIDERS in the event of a dog attack. Once a dog is considered “dangerous” or “vicious” the owner is mandated to secure suitable insurance to protect the public from the dog.

What should you do if you have an encounter with a dog while riding your bike on the roadway?

Can you protect yourself?

Ohio law  recognizes the need to protect yourself from dogs you may encounter.  The same law that gives you the right to pursue a damages claim against the owner of the dog that hurts you also gives you the right to take action.  In fact, the title of O.R.C. Sec. 955.28 is "Dog May Be Killed For Certain Acts - Owner Liable for Damages."  The law provides that if a dog is chasing you or approaching in a "menacing fashion" or with an "apparent attitude of attack"  or is otherwise engaging in aggressive behavior that dog may be killed.  If you wound the dog while protecting yourself or others, you are not liable under animal cruelty laws.

What To Do If You Are Hurt During An Encounter with a Dog

First, of course, get yourself safe. Call 911 and get medical care to the scene. Do NOT let anyone talk you out of that. In my experience handling these cases, more people are injured from a fall caused by a dog than an actual bite. Get yourself taken care of right away. Injuries can be unseen and significant!

What if you hurt the dog trying to get away from it? Don’t worry. The law recognizes that you have a right to defend yourself from dog attacks. O.R.C. 955.28, aptly entitled “Dog May Be Killed For Certain Acts,” you are entitled to protect yourself and, if you kill or injure the dog, you are not liable under any animal cruelty statutes.

Second, notify the owner of the attack immediately. Get the name, address, telephone, email and any other available contact information. Write it down. Send it to yourself in a text message, voicemail or email. Take a cell phone picture of the dog owner’s house. The address marker. The yard. The area where the crash/attack occurred. Try to talk to the owner. GET THE DOG OWNER’S INSURANCE INFORMATION. Dog attacks are typically covered by a homeowner’s policy.

Third, take a picture of the dog with your phone, preferably while the dog is still in the road or in the yard of the owner. Do what you can to get a photo. If you can’t get a picture, make notes about the dog. Breed. Color. Size. Anything special. Again, write it down. Text it to yourself. Do it immediately, not a week or two later. A frequent defense to dog cases is “MY DOG DIDN’T DO IT.” You may have to PROVE it some day and as soon as you leave the scene, any chance of getting that immediate evidence is gone.

Next, get the dog warden involved RIGHT AWAY when you find a dangerous or vicious dog. If an incident occurs on a ride, report it right away. [Your cell phone is really an important tool on your ride, eh?] Get it out and call the dog warden. [What? You don’t have his/her number? Take a minute RIGHT NOW to look it up and put it in your cell phone. The Dog Warden is a typically a COUNTY official. Find out if there have been any prior complaints about the dog.

Follow up your phone call with a letter to the Dog Warden outlining what happened. ASK THE WARDEN TO DECLARE THE DOG DANGEROUS OR VICIOUS, if your situation meets the definitions. Put pressure on the dog warden to act. Continue to follow up with the Dog Warden.

While most take their jobs very seriously, I have found situations [particularly in rural counties where they are used to dogs having a free reign] in which the Dog Warden has been slow to act. There are statutes which define his/her duties which can be used to agitate him/her into action if necessary. O.R.C. 955.23 states “No county dog warden shall willfully fail to perform his duties under section 955.12 of the Revised Code or other duties required of dog wardens.”

Follow up with a letter to the dog’s owner. If you didn’t get the owner’s name at the scene, learn how to determine from county records who owns the property where the dog came from. Send a letter, certified, to the owner advising the owner that the dog is dangerous or vicious [depending on your facts]. If you were injured, advise the owner that you’ve been injured and that you plan on filing a claim with his/her homeowner’s insurance. Tell the owner to contact his/her insurance agent and to have a claims representative call you and be ready to discuss how the incident occurred and the nature and extent of your injuries.

Your CLUB can get involved too. How? By posting Ride Reports of dog attacks. These serve two very important purposes. First, they warn riders of potentially dangerous dogs. Second, they provide some measure of PROOF of a dog’s vicious or aggressive tendencies and make it difficult for an owner to contend that Fido has never EVER chased a cyclist before. If the Club then follows through and sends its OWN letter to the owner, which is kept on file or posted on the webpage, then even more proof of the dog’s aggression is set forth. The Club’s letter should put the owner on notice that it has received a report from one of its riders that the owner’s dog left the property and was aggressive towards the riders, or caused a crash, or whatever… the mailing of such a letter, via certified mail, again puts the owner on notice and may cause him to chain up the dog before he gets sued!

What if you are INJURED by the dog? What are your rights?

Ohio has one of the very best “dog laws” in the country. Section 955.28 of the Revised Code imposes liability on the dog’s “owner, keeper or harborer” for “damages for any injury, death, or loss to person or property that is caused by the dog…” The only exceptions to liability are if the person who suffers injury was committing a criminal offense on the owner’s property, was committing or attempting to commit an offense against any person or was “teasing, tormenting or abusing” the dog on the owner’s property. The bottom line – if a dog comes OFF the owner’s property and causes a bike crash – the cyclist WINS.

In most “tort” cases you have to prove that the other guy was “negligent” or guilty of some level of culpability in order to win. Not so for dog owners. One Ohio Supreme Court case described a dog owner’s culpability as “absolute liability.” This means that it doesn’t matter if the dog’s owner took every possible precaution, used the best fence and the strongest leash or chain. If the dog leaves the property and causes damage to passing cyclist, the dog’s owner is liable.

Note that there is NO requirement in the law that dog actually BITE the person. The law permits recovery for ANY and ALL damages. If a playful dog comes out of its yard and chases a cyclist, who then crashes, the owner is liable – even if the dog was never aggressive and even if the dog comes up and licks the cyclists hand, dials 911 with its nose and barks for help!! In some states, there is a “one bite rule” which means the owner is not liable until the dog actually bites someone or acts aggressively. Not so in Ohio, although evidence of aggression can open the door to more damages known as “punitive damages.”

How do you HANDLE a claim like this? Do you need a lawyer? What do you need to know? What is your claim “worth?”

Well, that’s fodder for a future column! I can’t give away ALL my secrets in one essay, eh?

GOOD LUCK AND GOOD RIDING!
Steve Magas, The Bike Lawyer

[1] Steve Magas, Ohio’s Bike Lawyer, is an avid cyclist and Cincinnati-based trial lawyer who has handled “bike cases” for more than 20 years. Steve is the co-author, with Olympic racer-turned-lawyer Bob Mionske, of “Bicycling and the Law” – available on amazon.com and elsewhere. Steve has represented cyclists who have been injured or killed as the result of car/truck/bus crashes, dog attacks, and frame/component failures. Steve also sits on the Ohio Bicycle Federation Board of Trustees, writes regular articles on bike-legal issues, researches bicycle crash statistics and is an advocate for cycling at the national, state and local level. Steve can be reached for a FREE CONSULT at 513-484-BIKE, at 888-883-2600, or online at BikeLawyer@aol.com.

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 :

· DoNOT discuss what happened - the facts - with anyone before the police arrive.

· DoNOT exchange anything other than personal and insurance information with the other motorist.

· DoNOT apologize or acknowledge fault in ANY way.

· DoNOT argue with anyone about what happened.

· DoNOT 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.]

· DoNOT sign anything from anyone other than the police officer.

· DoNOT 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.

· DoNOT 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 KEYfinding, 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!