Phillips Law Firm Blog

From The NEW YORK TIMES

May 13, 2009

Group Bicycling Goes to Court

By J. David Goodman

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.

Bob Mionske's article can be found on the Bicycling magazine page Bob writes called "Road Rights."  You can read it, and add your comments here.

Hopefully, TASERing cyclists for the crime of "Riding A Bicycle On The Roadway will END here!

Steve Magas

The Bike Lawyer

"Protecting the rights of cyclists."

BikeLawyer@aol.com

Bikelawyer@phillipslawfirm.com

 

 

Road Rights Online

Anthony Patrick Story

By BOB MIONSKE

[You can view this story on Bicycling magazine's online page and blog here ]

A few months ago, I received a phone call from a cyclist with an incredible story to tell about an incident in Lawrence County, Ohio. Because the cyclist—a guy named Tony Patrick—was in need of an attorney, I hooked him up with Steve Magas, a contributing author to Bicycling & the Law, and a well-known bicycling attorney in Ohio. After hearing Tony’s story, Steve took his case. More about that later; first, let me tell you about Tony.

Weekdays, Tony runs his small construction company in Huntington, West Virginia. Weeknights, and weekends, Tony, a Cat 2 racer, can often be found hanging out at Jeff’s Bike Shop —that is, when he’s not out on a training ride, or racing. And that’s not unusual; Jeff’s Bike Shop is the center of a vibrant racing scene in Huntington, the second-largest city in West Virginia, and the home of Marshall University.

That racing scene means regular training rides, all of which start out and end up at Jeff’s. There’s a ride every other day, each geared to a different set of riders, but the real hammerfest is the Tuesday night ride. That’s the ride where the locals try, as Tony puts it, to hurt each other over the course of a 23-34 mile route that takes them across the Ohio River, into the back roads of southern Ohio, before looping back across the river into Huntington.

And that’s how Tony found himself just outside of Chesapeake, Ohio one Tuesday night in August of 2008, heading into town to take the bridge back across the Ohio River to Huntington. Tony was riding with “Ryan,” a then-16 year old nationally-ranked racer with a 4.2 GPA. [“Ryan” is a pseudonym; I’ve concealed his identity because he’s a minor.]

That night, Tony and Ryan were a little tired from a hard training ride the night before, so they decided to take the shorter route. Thus, as they headed into Chesapeake, they were separated from the peloton. Just outside the town limits, they passed the library. Exactly what happened from this point forward is the subject of dispute. Both Tony and Ryan say they were the only two people on the road. But they weren’t alone—in the library parking lot was a Lawrence County Sheriff’s Deputy. Over the course of several interviews for this story, Tony and Ryan told their side of what happened. The Deputy’s account of what happened is contained in his written report of his encounter with the two cyclists, and in his later testimony at a hearing before a judge, nearly five months after the events that occurred on that August evening.

Tony and Ryan both say that they saw a Sheriff’s car in the parking lot, but did not see anybody in the parking lot. The Deputy had a different story to tell; in both his written report, and his later testimony before a judge, he said that when he first encountered Tony and Ryan, he was approaching them while traveling in the same direction; they were riding two abreast. He noticed that there were two or more vehicles following behind him. He reported following the two cyclists at a speed of about 5-10 miles per hour for about three-fourths of a mile before it was safe to pass them. He later testified that as he passed the cyclists, Tony smiled at him; he testified that he shook his head “no” at Tony, and then, after he had passed the two cyclists, watched in his rearview mirror to see whether the two cyclists went single file, or if the other cars were able to pass despite their riding two abreast. Seeing that neither was the case, he pulled ahead, into the library parking lot, intending to speak to the cyclists because they were “impeding traffic.”

The Deputy reported that he got out of his vehicle, and as the cyclists approached, he told Tony to pull over, and that Tony replied “I have got as much right to the road as anyone else,” and continued riding towards town. The Deputy reported that he then got back in his cruiser, hit the lights and sirens, and continued to follow the two cyclists, giving commands over his public address system, and “at times out the window.”

Tony and Ryan both recall it differently; Ryan recalls that they were riding two abreast, at about 18 – 20 MPH, and had entered the city limits, where the speed limit is 25 MPH. when they They heard a car approaching; Tony called “car back,” and they singled up. As Tony tells it:

We were riding along, and about 300 – 400 meters beyond the library, this Sheriff’s car suddenly pulled up alongside me and the Deputy rolled down his window and said ‘You guys shouldn’t be riding in the road.’ I responded ‘We have as much right to be in the road as you do.’

Now, this is where it gets a little complicated. In West Virginia, as in many states, the law unequivocally states that, “Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle...” But in Ohio, there is no similar declaration of a cyclist’s rights. Ohio law does define a bicycle as a vehicle, however, and so a cyclist has all the rights applicable to other vehicle operators, even if the law doesn’t specifically say so. In other words, Tony and Ryan DID have as much right to be in the road as the Deputy, even if it’s not explicitly spelled out in the law.

Nevertheless, despite the fact that under Ohio law the two cyclists had a legal right to the road, Tony and Ryan both claim that the Deputy responded to Tony’s assertion of that right by yelling “’Get off the f-king road’ several times.” Months later, at the hearing, when asked whether he had used profanity during his encounter with the cyclists, the Deputy replied “possibly.”

Both Tony and Ryan claim that the Deputy then attempted to force them off the road with his cruiser; As Ryan recalls:

He was trying to force us off the road with his car, but there was nowhere for us to go. The shoulder was just gravel, and dropped off into a ditch.

Both Tony and Ryan say that to keep from being run off the road, Tony quickly pulled ahead while Ryan braked and fell in behind the cruiser. Ryan says that once he was behind the cruiser, the Deputy slammed on his brakes, but Ryan evaded the imminent crash by riding around the cruiser. As Ryan cleared the cruiser, he says the Deputy opened his door and attempted to body-check him, but missed. Ryan caught up with Tony but, significantly, Tony says that Ryan didn’t tell him what had just happened; unaware of what had just transpired, Tony continued riding, with Ryan following behind him. Having failed to run the two cyclists off the road, the Deputy got back in his car, and raced ahead.

At one point, I get in front of them, I tried to put my car up in park to jump out of my car at one of them or something, then they both go around. One goes on this side, the other goes on this side of me. And they continue on up through there.

In his written report, the Deputy stated that he pursued the cyclists for almost a mile, and that:

On several occasions the subjects stood up and shaked their butts at me taunting me.

Asked about this, Tony confirms that on occasion, they were standing on their pedals, and that the Deputy misinterpreted this as taunting. That misunderstanding aside, the Deputy’s observation that the cyclists were standing on their pedals brings into doubt his observation that they were traveling at 5 -10 MPH. And in fact, as will be seen, the Deputy’s own later testimony would contradict his reported estimation of the cyclists’ speed.

According to Tony, after the Deputy failed to force them off the road, he raced ahead to the cyclists, and as he caught up with them, hit his lights; he pulled to their right, in the parking lane, and with a profanity-laced tirade, yelled that the two cyclists were under arrest. Tony asked incredulously “What? What are you talking about?” Despite what he felt was a baffling outburst from the Deputy, Tony says that he wanted to pull over, but the Sheriff’s cruiser was between him and the shoulder of the road.

At this point, according to Ryan, the Deputy raced ahead 300 meters, swung his cruiser around sideways across the lane, partway into an auto sales lot, got out, and assumed a firing stance. Ryan claims that as the two cyclists approached, the Deputy yelled out “Stop, or I’ll shoot.”

With the Deputy in a shooting stance, the situation was getting dangerously out of control, so Tony says that he and Ryan rode up to the Deputy, intending to stop as he had ordered, “like ‘you got me,’” Tony says. They rolled to a stop. At that moment, Tony says, the Deputy fired.

Fortunately for Tony, the officer was holding a taser, and not a gun, as Tony at first believed. Only one of the taser’s electrodes hit Tony in the side; he was jolted, but not incapacitated, and he grabbed at it, yanking it out. Ryan was behind Tony now, out of taser range, watching in mounting terror as the incident unfolded. With an air of disbelief at what had just happened, Tony nevertheless maintained his composure, saying:

Dude, you just shot me with a taser! That was totally uncalled for!

The deputy had a somewhat different story to tell; he testified that:

I go around them again, get my car stopped, pull over, get out, pull my Taser out of the car, tell them…to stop or I was going to tase them, and then Mr. Patrick tries to cut through the auto parts or auto sales lot.

According to the Deputy’s testimony, he believed that the two cyclists were attempting to cut through the auto lot to get to the bridge and escape to West Virginia.

By now, Tony says he was doing his best to defuse a situation that was rapidly spiraling out of control, but as he explains, the Deputy just kept making the situation worse. Tony says that after the taser had failed to have its desired effect, the Deputy pulled out his telescoping baton, and began swinging at Tony. However, he wasn’t having any more luck with his baton than he did with the taser; Tony says the baton failed to open fully, so the Deputy kept flailing away at Tony while trying to grab him and simultaneously attempting to hold up his pants—which were threatening to drop to the ground with each swing. The scene was both comical and deadly serious.

At this point, Tony says that he told the Deputy that he was out of control, and behaving unprofessionally, and that Tony was going to sue. According to Tony, the Deputy, “should have said ‘get on the ground,’ but he never gave me a chance,” so Tony did the only thing he could to protect himself—he raised his bike to block the Deputy’s blows, while telling him “You need to calm down.” As Tony explains, he wanted to get down on the ground to defuse the situation, but doing so “would have meant getting the hell beat out of me.” Faced with a choice of defending himself or taking a beating, Tony says “the situation didn’t call for me to get down.”

Again, the Deputy has a somewhat different account of what happened, in his report, he wrote:

I deployed my Tazer on Anthony Patrick and it had little effect. Both subjects stopped at this point and I gave commands for them to get on the ground. Both subjects did not. I attempted to grab Patrick and he pulled away. He then moved away from me and picked up his bike to try and throw at me or hit me. I pulled my Asp baton and ordered him to put the bike down. At this time he did.

And then things went from bad to worse. Sometime during the altercation the Chesapeake, Ohio police showed up, and as Tony and the Deputy struggled, Tony was tased again, this time, by the Chesapeake police. According to the Deputy’s report, the tasing occurred as “Patrick lunged at me,” while according to Tony and Ryan, the second tasing occurred as Tony was resisting the Deputy’s attempts to beat him. Unlike the first tasing, however, this time, the taser connected; as Tony tells it, “I shoot up on my toes like a ballerina, then fall over like a log.” He landed on his right elbow, and hit his head hard enough to crack his helmet. “If I hadn’t been wearing my helmet,” Tony notes, “I would have cracked my head open.”

Ryan says that at this point, with Tony now laying on the ground, the officer tased Tony a third time In notes he made shortly after the incident, Ryan says that Tony was tased a total of five times by Chesapeake Police officers; Tony says we was tased “repeatedly.” The Deputy’s report states that:

He went to the ground and we kept giving him commands to stay down and he tried to get up and he was Tazed for the second time. He finally became compliant and he was handcuffed.

Meanwhile, Ryan had been waiting quietly nearby, watching the entire surreal scene play out before him; now, as the officers were tasing and cuffing Tony, Ryan tried to call his mother to let her know what was going on. As he was making the call, somebody shouted “Watch out for the other guy!” Taking heed of that warning, one officer kicked the phone out of Ryan’s hand, just as he connected with his mother; the phone went flying, and shattered when it hit the pavement. The officer then slammed Ryan face-first to the ground and handcuffed him.

At the other end of the connection, Ryan’s mother heard him say, “Mom!...Mom!...” and the sound of sirens in the background, and then the impact of the phone hitting the pavement, before it shattered and the connection went dead. Not knowing what had happened, Ryan says she was absolutely terrified by the call.

Meanwhile, back at the arrest scene, Ryan complained that his handcuffs were too tight; he says that one of the officers remarked, “You should have thought of that before being a smart ass.” That seemed to be a common theme with the officers. As Tony recalls, the law enforcement officers were “extremely unprofessional,” making repeated remarks about “smart asses.” Tony says that he informed them that he would be suing, and one of the officers responded “We’ll see who gets sued.”

Tony was then taken to the Lawrence County Sheriff’s Office for processing, but when Ryan informed the officers that he was 16, they took him to the Chesapeake Police Department, and removed the handcuffs once he was there.

According to both Tony and Ryan, their bikes—Tony rides a $7,500 Specialized Tarmac SL, Ryan rides a $6,000 AeroCat—were left behind on the pavement by the departing officers. Despite these allegations of a total lack of care taken by the law enforcement officers involved, the bikes weren’t stolen; a bystander who recognized Tony called a mutual friend, and the friend came and got the bikes, and then went to the police station where Ryan was being held. Ryan’s parents showed up soon after.

Needless to say, they were furious about what had happened to their son, so, according to Tony, the Deputy took it upon himself to lecture Ryan’s parents about their son:

Let me tell you what your son is about. I’m on my way to a burglary, and these guys were impeding me from getting there.

Let that sink in for a moment. The Deputy was on his way to a burglary, but he had time to tase and beat a cyclist because he was “impeding” the Deputy by riding on the road? That lecture didn’t make sense to Ryan’s parents, but the Deputy clarified his statement, explaining that he was on his way to investigate a burglary that had been called in hours before, when he was impeded by Tony and Ryan. There were still a few problems with that story, however.

First, regardless of whether one believes the Deputy’s report and testimony, or Tony’s and Ryan’s accounts, both sides agree that the Deputy pulled up alongside them to express his opinion that they should not be riding in the road. If they were impeding him, how was he able to pull up alongside them? And if he passed them, as he claims, in what way were they impeding him from getting to the burglary investigation?

Second, in Ohio, cyclists cannot be in violation of the impeding traffic statute if they are traveling as fast as they reasonably can. This principle was first established in a 2001 Ohio case called Trotwood v. Selz, and was subsequently codified into Ohio law in 2006, with the addition of a provision that:

The [judge or jury], in determining whether the vehicle was being operated at an unreasonably slow speed, shall consider the capabilities of the vehicle and its operator.

Thus, by the time the Deputy decided to stop Tony and Ryan for impeding traffic, it had been well-established in Ohio that cyclists who are traveling at a reasonable speed cannot be cited for impeding traffic. Although the Deputy would later refer to Trotwood v. Selz during his testimony, indicating that he had finally been brought up to speed on Ohio law—by a prosecutor, in all likelihood—it was apparent on the day of the arrests that the Deputy was completely unfamiliar with the law as it applies to bicycles, and in fact, he admitted this in his later testimony:

Before this case I was not very familiar with bicycles and just the controversy between the bicycle situation and the thing and I’ve researched it and stuff and, you know, from what I can gather, as long as they are traveling the speed limit and they’re not impeding traffic, there’s not traffic behind them, then they wouldn’t be impeding traffic or if the cars can safely pass them, then they wouldn’t be impeding traffic, and in the case of up north of Troutwood [sic] it actually goes to the point that the judge is the one to determine who was—whether or not a bicycle was impeding traffic. So I guess it’s a—you would normally just write a ticket and the judge would decide if they was impeding traffic. I don’t know.

It’s important at this point to note that even at the hearing, after he had done his legal research, the Deputy STILL had the law wrong. In Ohio, it doesn’t matter if cyclists “are traveling the speed limit,” or “if they’re not impeding traffic,” or “if the cars can safely pass them.” Not one of those conditions the Deputy addressed is the law in Ohio regarding cyclists—in fact, the entire point of the Trotwood v. Selz case, and subsequent changes to the Ohio code, is that the conditions the Deputy cites have no bearing in any case of a cyclist or cyclists impeding traffic. The only legal metric is whether the rider(s) is/are traveling at a reasonable speed for a cyclist.

Back on the night of Ryan’s booking, Tony says that the Deputy informed Ryan’s parents that he didn’t know what he was going to charge Ryan with, but he had to charge him with something, so he sat down with a copy of the code book and looked for the appropriate statute. For the next thirty minutes, the Deputy searched for something to charge Ryan with, but couldn’t find anything.

Eventually, he settled on a pair of charges. First, he charged Ryan with “Operating a bike on the roadway.” He also charged Ryan with “Failure to comply with an order.” As the Deputy later explained in his testimony, the problem was that he wanted to charge the two riders with impeding traffic, but couldn’t find the appropriate law for a bike. This was because he didn’t understand that cyclists are subject to the same laws as other vehicle operators, and therefore, if they were impeding traffic, they should have been charged with impeding traffic. Instead, the Deputy believed that the law required cyclists to obey all traffic rules applicable to vehicles, and that busting Ryan for “Operating a bike on the roadway” covered violations of other laws, like impeding traffic. Ryan says that two weeks later, the prosecutor added an “impeding traffic” charge to cover the violation that the Deputy thought Ryan had committed.

Meanwhile, at the Lawrence County Sheriff’s Office, Tony was also charged with “Operating a bike on the roadway”; he says that later, as the prosecutor did with Ryan, an additional charge of “impeding traffic” was added. Due to the circumstances surrounding the arrest Tony was also charged with failure to comply with an order, resisting arrest, attempted assault on an officer, and obstructing official business.

Ryan says that as his trial date approached, the prosecutor offered him a deal—testify against Tony, and the charges against Ryan would be dropped. Ryan says that he refused to save himself by “throwing Tony under the bus,” as he puts it. So, with the case against Ryan scheduled to go to trial, Ryan’s attorney filed a motion to dismiss the charges/ Tony’ attorney did the same.

In its decision following the hearing on the motion to dismiss Tony’s charges, the Court began by noting that the state had the burden of proving that the arrest was consistent with the 4^th Amendment, but that the state must only meet that burden by a “preponderance of the evidence,” rather than the higher “beyond a reasonable doubt” standard. This means that the state would simply have to prove that it was more likely than not that the arrest was consistent with the 4^th Amendment; this is the easiest burden of proof.

The central question was whether Tony had been impeding traffic. If the state proved that it was more likely than not that Tony had been impeding traffic, then the order to pull over was lawful, and the arrest for failure to comply with that order was also lawful; if that was the case, the charges would not be dismissed. On the other hand, if the state failed to prove that Tony had been impeding traffic, then the order to pull over was not lawful, and the subsequent arrest for failure to comply was also not lawful, and the charges would be dismissed.

This meant that the prosecution had to show that Tony was riding at a speed that was unreasonably slow for a cyclist—a task that proved impossible, once the Deputy testified that he estimated the cyclists’ speed at 15 – 20 MPH, but didn’t really know how fast they were going, and admitted that he didn’t know what the speed limit on that road is, within the city limits. There was simply no evidence that the cyclists had ever impeded traffic, and thus, the Deputy had no reason to stop the cyclists, and they could not be charged with failure to comply with his orders. The charges were dismissed.

Later, at the hearing on the motion to dismiss the charges against Ryan, the prosecutor was once again unable to prove the impeding traffic charge, and the Court reached the same decision that it reached following Tony’s hearing, dismissing the charges against Ryan.

Now, although these issues are behind Tony and Ryan, for the rest of us, two issues arising from this incident still remain. First, there’s a widely-held perception that if a law enforcement officer tells you to pull over, you are required by law to comply with that order, even if the order itself is unlawful. Second, what should cyclists who find themselves in similar situations do?

The first issue—whether cyclists must obey the orders of law enforcement officers—was central to the “motion to dismiss” hearings for Tony and Ryan. As the Court held, if the cyclist hasn’t broken a traffic law, then the cyclist can’t be lawfully arrested, and the order to pull over is itself unlawful. Therefore, if the order is unlawful, the cyclist is not required to obey the order, and can’t be arrested for failure to comply. Now, this is the law in Ohio, but it is based on 4^th Amendment jurisprudence, so the jurisprudence in other states should be similar. If somebody knows of contradictory 4^th Amendment jurisprudence in another state, pleased let me know.

Those legal points aside, there’s another point to consider here: Were Tony and Ryan ever actually ordered to pull over? The Deputy has testified that he ordered them to pull over, but Tony and Ryan tell a different story; according to Tony and Ryan, the Deputy told them (1) “You guys shouldn’t be riding in the road; (2) “Get off the f-cking road”; (3) “You’re under arrest”; and (4) “Stop or I’ll shoot.” If no order was given, at what point should they have pulled over? When they were told they shouldn’t be riding in the road? When they were told to get off the road? If they did get off the road, as ordered, what does that say about their right to the road? Certainly, one could make the argument that, as a practical matter and all legalities aside, they should have pulled over when they were told they were under arrest, but as Tony explains, at that point, they weren’t given a chance to pull over.

And that brings us to our second issue—what should cyclists who find themselves in similar situations do? That’s not an easy question to answer. In Bicycling & the Law, I wrote that

Gaining the right to the road was the cycling cause of the late nineteenth century; securing that right will be the cycling cause of the early twenty-first century.

What happened to Tony and Ryan from the moment the Deputy first decided to say something to them is a real-world example of the challenge cyclists face in securing their right to the road. For most of us, I suspect it’s easier to just quietly comply with a law enforcement officer’s misguided attempts to enforce laws that don’t exist. Sure, we know the officer is wrong, but do we really want to go to jail to make that point, instead of wherever it is we happen to be going at that moment?

The problem is, if everybody acquiesces to a violation of our rights, do we still have the right? I would argue that unless the right is exercised, it doesn’t exist. Therefore, when a law enforcement officer is enforcing laws that don’t exist, it is incumbent upon us to stand up for our rights.

But how do we do that without triggering a beatdown and a trip to jail? I think it will depend upon finding a middle way between disobeying an officer’s order and acquiescing to a violation of your rights. On the one hand, cyclists shouldn’t think that the lesson from Toy and Ryan’s experience is that cyclists can make an on–the-spot decision as to whether an order is lawful or not, and thus, whether or not an order should be obeyed. As we saw with Tony and Ryan, if an officer believes that you are not complying with his orders, that can have potentially deadly results, even though the officer is wrong. On the other hand, cyclists shouldn’t have to quietly acquiesce to violations of their rights by law enforcement. Hopefully, law enforcement officers will familiarize themselves with the laws they are enforcing, and if they are unsure of the law, have the humility to simply accept that they don’t know what the law is—and then educate themselves on what the law actually is, before attempting to enforce something that may not, in fact, be the law. Likewise, cyclists can choose that middle way between acquiescence and disobeying an order, by stopping when asked, but standing up for their rights, respectfully but firmly, and accepting that the price of defending our right to the road may mean accepting a citation now and beating it in court later.

Now, as I said at the beginning of this story, Tony called me because he was looking for a lawyer; true to his word, he intended to sue the arresting officers. And as I said, I hooked him up with Steve Magas, a well-known Ohio bicycle attorney. Among Steve’s many accomplishments in the practice of law, he was the attorney representing cyclist Steve Selz, in the Trotwood v. Selz case that established that Ohio cyclists cannot be in violation of the impeding traffic statute if they are traveling at a reasonable speed for a cyclist. He was also instrumental in getting Ohio’s “Better Bicycling Bill” passed; this was the bill that, among other things, codified the Trotwood v. Selz ruling into the “impeding traffic” statute. Steve has agreed to take Tony’s case, and is currently awaiting a response while investigating a civil action in the case. With Steve’s background in establishing cyclists’ right to the road in Ohio, the case promises to be “arresting.”

Bob

(Research and drafting by Rick Bernardi, J.D.)

The gigantic super humongous stimulus package recently signed into law has at least one provision that should excite motorcyclists everywhere.  If you buy a motorcycle in 2009, and pay $49,500.00 or less, you will be able to deduct the sales tax and excise tax on your 2009 tax return!

The specific provisions of the Tax Bill read as follows:\

SEC. 1008. ADDITIONAL DEDUCTION FOR STATE SALES TAX AND EXCISE TAX ON THE PURCHASE OF CERTAIN MOTOR VEHICLES.

(a) IN GENERAL.—Subsection (a) of section 164 is amended by inserting after paragraph (5) the following new paragraph:
‘‘(6) Qualified motor vehicle taxes.’’.
(b) QUALIFIED MOTOR VEHICLE TAXES.—Subsection (b) of section 164 is amended by adding at the end the following new paragraph:
‘‘(6) QUALIFIED MOTOR VEHICLE TAXES.—
‘‘(A) IN GENERAL.—For purposes of this section, the term ‘qualified motor vehicle taxes’ means any State or local sales or excise tax imposed on the purchase of a qualified motor vehicle.
‘‘(B) LIMITATION BASED ON VEHICLE PRICE.—
The amount of any State or local sales or excise tax imposed on the purchase of a qualified motor vehicle taken into account under subparagraph (A) shall not exceed the portion of such tax attributable to so much of the purchase price as does not exceed $49,500.
‘‘(C) INCOME LIMITATION.—The amount otherwise taken into account under subparagraph (A) (after the application of subparagraph (B)) for any taxable year shall be reduced (but not below zero) by the amount which bears the same ratio to the amount which is so treated as— ‘‘(i) the excess (if any) of— ‘‘(I) the taxpayer’s modified adjusted gross income for such taxable year, over ‘‘(II) $125,000 ($250,000 in the case of a joint return), bears to For purposes of the preceding sentence, the term ‘modified adjusted gross income’ means the adjusted gross income of the taxpayer for the taxable
year (determined without regard to sections 911, 931, and 933).
‘‘(D) QUALIFIED MOTOR VEHICLE.—For purposes of this paragraph—
‘‘(i) IN GENERAL.—The term ‘qualified motor vehicle’ means—
‘‘(I) a passenger automobile or light truck which is treated as a motor vehicle for purposes of title II of the Clean Air Act, the gross vehicle weight rating of which is not more than 8,500 pounds, and the original use of which commences with the taxpayer,
‘‘(II) a motorcycle the gross vehicle weight rating of which is not more than 8,500 pounds and the original use of which commences with the taxpayer, and
‘‘(III) a motor home the original use of which commences with the taxpayer.
‘‘(ii) OTHER TERMS.—The terms ‘motorcycle’ and ‘motor home’ have the meanings given such terms under section 571.3 of title 49, Code of Federal Regulations (as in effect on the date of the enactment of this paragraph).

(c) DEDUCTION ALLOWED TO NONITEMIZERS.—
(1) IN GENERAL.—Paragraph (1) of section 63(c) is amended by striking ‘‘and’’ at the end of subparagraph (C), by striking the period at the end of subparagraph (D) and inserting ‘‘, and’’, and by adding at the end the following new subparagraph: ‘‘(E) the motor vehicle sales tax deduction.’’. (2) DEFINITION.—Section 63(c) is amended by
adding at the end the following new paragraph: ‘‘(9) MOTOR VEHICLE SALES TAX DEDUCTION.— For purposes of paragraph (1), the term ‘motor vehicle sales tax deduction’ means the amount allowable as a deduction under section 164(a)(6). Such term shall not include any amount taken into account under section 62(a).’’.

(e) EFFECTIVE DATE.—The amendments made by this section shall apply to purchases on or after the date of the enactment of this Act in taxable years ending after such date.

Ain't Life Grand!!

Steve Magas, The Bike Lawyer

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!!

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[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

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[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

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[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:

· 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!

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[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!

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

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

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

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

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

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

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

So, what did they find out?

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

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

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

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

Ø The majority of the crashes occurred in urban settings.

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

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

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

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

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

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

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

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

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

o Alcohol use

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GOOD LUCK AND GOOD RIDING!

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[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!

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

Last month I talked about what to do at the scene of a crash after a motorist turned left in front of you and you crashed. This month, we're assuming you want to pursue a personal injury claim against that motorist. What's involved? What should you do? Do you need a lawyer? What pitfalls are there in handling it yourself?

As soon as a crash occurs many legal concepts, events and contracts kick into play. First, if you were not at fault and someone else was, a "claim" arises. A "claim" is your right to pursue "damages" for someone else's misbehavior. Typically a claim is made against the negligent person's insurance company, but sometimes it has to be made against YOUR insurance company.

In fact, numerous insurance contracts that fire up include your auto/motorcycle policy including its liability provisions, "medical payments" coverage, uninsured/underinsured motorist coverage and more. Your health insurance policy may be triggered as well as insurance policies from your employer such as short or long term disability and benefits such as vacation or sick leave. Each of these can impact your claim, and your ultimate recovery.

The question I hear a lot is "Can't I do this myself and not pay a lawyer a third of the money?" The answer is" .. Well .. Yea, of course you CAN. but why would you want to?" Just what do lawyers DO anyway?

As a personal injury lawyer, what I really "do" is a large number of relatively simple things - followed by some complex analysis and negotiations based on almost 25 years of experience handling hundreds of similar claims. When you hire a lawyer, it's this experience, analysis and negotiating skill you are paying for. You are also paying the lawyer to be a buffer between you and the insurance carrier as well as your advocate, confidante, information organizer, adviser, appraiser and counselor.

To get your claim started hopefully you read last month's article and got all of the information from the other driver, witnesses, your care providers and others and provided that to your lawyer! This certainly makes MY life easier, [.but we're very used to gathering this information too!]

In the beginning of a claim, I am a paper gatherer and a fact gatherer. I talk to the witnesses, get statements, get the police report and photographs, go to the scene and take my own photos or videos, get the physical evidence, gather up records - from the EMT's, the Emergency Room, your family doctor, your specialist, your physical therapist, your surgeon. I make sure I get ALL the records - cover to cover. This is critical in presenting your claim.

I need to nail down the facts of your claim as quickly as possible and analyze any liability issues. In motorcycle claims, the insurance company frequently argues that the motorcycle operator did something wrong, or was "contributorily negligent." Under Ohio law a jury could determine that your actions were part of the cause of the crash. A jury would assess a percentage of fault to each party. If your degree of fault is MORE THAN 50%, you LOSE the case. If your percentage of fault is 50% or less, you still win, but the amount of money you would win is reduced by that percentage. Thus, if you win $100,000, but a jury says you are 40% at fault, you would only get $60,000.

This makes the lawyer's initial factual investigation critical. The insurance adjustor will be tracking down witnesses immediately. We know that witnesses tend to identify with one side or the other and that early discussions are important for preserving their memories. That's why I try to contact any witnesses as soon as a case comes in.

While I am gathering facts and paper, I expect you to go about the business of healing and getting better. I tell clients that there are several important things they need to do. Do what your doctors tell you to do. Keep your appointments. Take the medicines. Do the exercises. Follow up if it keeps hurting. Keep a log - a diary - that catalogs and describes your recovery. Describe your pain vividly. If appropriate, use words like burning, throbbing, radiating, aching, shooting, fire-like.

As you heal, your lawyer remains in contact with the insurance "adjustor." An "adjustor" is professional employee of an insurance carrier who is specially trained to investigate and negotiate claims. She or he has a career which requires the spending as little of the insurer's money as possible to resolve your claim! Sometimes adjustors are nice, sometimes mean but they are always looking for ways to minimize the amount of money the insurer will spend - that's their job, and they do it well.

A claim is a "thing" that has a value in a special marketplace. Just as you might not have a clue as to what makes an old painting, a 1965 Fairlane or a Pete Rose rookie baseball card valuable, I would not expect you to know what makes a "claim" more or less valuable. You would be well advised to get an independent evaluation of your painting, Ford or baseball card and to NOT trust the "value" assigned by someone who wants to buy it! Part of your lawyer's job is knowing how to properly evaluate your claim and to understand what factors make it more or less valuable.

The "value" of your claim is based on the nature and extent of the injuries caused by the crash, the treatment received, how long the recovery took or, if you didn't get better, the extent of any permanency. Your medical bills, lost wages, property damage and other out of pocket financial losses are all recoverable. Under Ohio law, you can also recover money to compensate you for pain and suffering and other "non economic" damages. How do you determine a good "number" or value though? Is your claim worth $5,000.00 or $50,000.00?? What's the value of a scar over your eyelid, a fractured tibia or soft tissue neck and back injuries?

Factors that make claims more valuable include blatantly painful injuries [fractures, scars, burns], obvious permanency [eye damage, hearing loss, mangled arm, leg], intense treatment [brain injury, ICU care, surgery, extensive physical or occupational therapy] and significant financial losses [large medical bills and weeks/months of wage loss].

Factors that may negatively effect value are more subtle and can include: whether you did anything wrong, the "Likeability" of the claimant and the negligent party, the amount of property damage, the location of the crash, the location of a court where the matter would be heard, the extent of broken bones or scars, rural vs. urban counties and chiropractic vs. medical care.

Once I have developed my evaluation of the case [usually a range of values], I meet with the client and discuss my evaluation extensively. The client ALWAYS has the final say - it's his or her case, not mine. However, I will always give my very best opinion as to value and negotiation strategy. Once a strategy is agreed upon, I submit an extensive letter to the insurer which outlines the entire case - liability, treatment, damages, legal analysis - and sets forth the amount of money "demanded" by the client to settle. An organized binder of all supporting documents is also submitted.

Once your demand is out there, you have no control over what the insurer does. Typically, within a week or two I get an "offer" from the insurer - this is ALWAYS considerably lower than the "demand." The high/low negotiation parameters are now set, and the process becomes a bit like buying a used car! Demands and offers usually continue and, hopefully, there is an overlap at some point in the process and case is settled.

In my practice, I usually settle 70-80% of all claims before a lawsuit is required. Even among those cases in which a lawsuit is filed, MOST settle short of trial. Only 1-2% of all claims ever end up in a courtroom. As a "trial" lawyer, I have taken many cases from intake to trial in many counties throughout the state of Ohio.

Always remember that your claim has a "statute of limitations" which varies based on your location and the type of claim. If you fail to file a lawsuit within the limitations period, the claim is lost forever!

So that's it - gather all the data, review, analyze and organize it, prepare a demand and negotiate, or file and prosecute a lawsuit if necessary! That's what lawyers do. Can YOU do this too? Of course, there's no magic in gathering data. What you may lack is the knowledge of law, medicine and engineering/physics needed to analyze the issues and put a case together, the experience of evaluating and handling hundreds of other claims, and the negotiation skills necessary to deal with an aggressive adjustor.

Good Luck & Good Riding!

GOOD LUCK AND GOOD RIDING!

 

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[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 including Roadwheeler and BMW Owner's News. His unique "Bike Law practice has been featured nationally in Lawyer Weekly USA and locally in the Cincinnati Post, Cincinnati Magazine and Cincy Business. 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, on a ride or heading to a gig with his trumpet strapped to the rack!

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

On September 20, 2007 Lloyd Clarke was killed while taking a bike ride. Lloyd was a good man - a loving husband to his wife, Sherol - a wonderful father to his 10 year old daughter - a solid co-worker - a strong, fit and experienced bicyclist who was well-liked by his fellow rides in Maryland. Lloyd's death struck his family and friends very deeply. What happened in the days following Lloyd's death shook them even harder.

Lloyd was traveling on business to Incline Village, a picturesque little city that sits on the Nevada side of Lake Tahoe. Lloyd always traveled with his pedals & riding clothes in his luggage so he could rent a high end bike and ride on business trips. Lloyd also used a GPS to track his rides in tremendous detail.

Lloyd rented a bike from a shop in Incline Village early in his week-long stay and rode every day. At 6,330 feet up in the Sierra Nevada mountains and roads with 8 or 9% grades, or more, Incline Village provides the bicyclist with some particularly challenging routes. Lloyd was more than up to the task. As a man who had once taken his bike from sea level to a point 10,000 feet UP the mountain in Hawaii that many choose to ride DOWN, Lloyd was known as a powerful rider.

On September 20, 2007, Lloyd was riding a loop of around 8.8 miles. As Lloyd came down Country Club Road into the intersection with Village Blvd., a pick-up truck driven by a 17 year-old local boy was coming up Country Club. The juvenile made a sudden left turn in front of Lloyd as Lloyd pedaled into the intersection. Lloyd was unable to stop before crashing into the side of the pick-up truck and suffering fatal injuries.

Lloyd clearly had the right of way. There were no traffic controls at the intersection. Lloyd was proceeding straight through and the truck turned left in front of him. Seems like an open and shut case, right? A classic "left hook" in bicycle accident reconstruction parlance caused by the juvenile's failure to yield the right of way to oncoming traffic?.

Sadly, the police on the scene didn't see it that way. For reasons known only to them, local police at Incline Village immediately took blame AWAY from the young motorist and placed it on the cyclist! According to comments published in the local paper and attributed to Brooke Keast, a public information officer with the Washoe County Sheriff's Department, "It looked like the cyclist was going too fast. It's so hilly up there that sometimes you might not be able to stop." Capt. Steve Kelly, commander of the Sheriff's Incline Village substation, said, "Tentatively, it looks like the cyclist was exceeding the speed limit,"

Huh? Welllll, certainly such a bold and official statement from the police was based on some actual evidence. right?

Not exactly.According to Keast, ".witnesses at the scene said they saw the truck going up Country Club Drive and turn left onto Village Boulevard. They said the cyclist was going too fast to stop." How fast was the bike going? What was the speed limit? Does "too fast to stop" mean speeding?

According to Capt. Kelly, ".it looks like it was simply a very unfortunate accident..If speed was the main contributing factor the juvenile most likely isn't to blame." Huh? But.didn't the kid turn left in front of the bike??

What about that juvenile, what was he saying? According to Keast, the juvenile was ".real cooperative, and we don't expect to have any issues with him." Keast again, "It's just one of those unfortunate things that happen . From what I hear he [Lloyd] was a experienced rider, but possibly he wasn't in that area."

Lloyd's friends and family read those comments in the local paper and reacted quickly. They added comments to the online version of the newspaper article. They contacted the writer. They contacted the police department. They tried to get some sort of retraction published.

A few days later, more inflammatory comments arose. Capt. Kelly acknowledged that ".his office has received phone calls from upset citizens, asking why the juvenile driver isn't being blamed for the accident." However, Kelly stressed that ".it was an unfortunate accident in which no one should be blamed."

Kelly then strung together an entire paragraph of ridiculous comments for the paper:

"One thing I will say - the fact of the matter is, if we find he was exceeding the speed limit in a low-light situation, how do you expect the driver to see him?" Kelly said. "It was dark. It was probably hard for the driver to see him, he had no lights on the bicycle and he probably was not familiar with the area. Now obviously, I don't think it was a deliberate attempt to disregard the law. We don't have a final finding yet, but those are possible reasons why."

Isn't that special. The police are saying ".we don't have the final finding yet, but." we think the cyclist was speeding and besides it was dark and the rider was unfamiliar with the area and thus the rider caused his own death by slamming into the car that turned left in front of him. [forgive me, I'm paraphrasing here.]

What a load of . well.

The Sheriff's Major Accident Investigation Team [MAIT]was called in and a THOROUGH accident investigation was then undertaken. This included TALKING to witnesses, ANALYZING data, taking measurements, performing a RE-CREATION of Lloyd's ride down Country Club, accessing the GPS data, looking at Sunset/daylight records and more.

I was called into the case by Sherol Clarke, Lloyd's widow, and I traveled to Lake Tahoe in October. Standing at the scene I was shocked - I couldn't imagine how ANYONE could possibly determine that the bike was "not visible." The sunset records I looked at told me it was still daylight at the time of the crash. Even if Lloyd was going 40 mph, the oncoming motorist would have been able to see Lloyd for several seconds before impact. There was just no way I could see this being Lloyd's fault. I took photos and video of the scene, spoke with a witness, met with Sherol and took some measurements. The police, by this time, had decided to back off and refused to speak with me about the case.

The Final MAIT report supported my "seat of the pants" analysis based on standing at the site.

When they looked at Lloyd's GPS they found a treasure trove of data. Turns out Lloyd was tracking his ride - he had made two previous loops before being hit and killed the third time around. According to the GPS data, EACH TIME he entered the intersection of Country Club and Village, he had slowed down. He was riding WITHIN THE SPEED LIMIT, and had slowed down.

The scene photos showed that the path taken by the pick-up truck was improper. The driver clearly tried to "cut the corner" and started making the turn about 15 feet before a spot on the roadway that would have been appropriate to start the turn. The investigation team concluded that had the juvenile "gone another 15 feet up to make a proper turn, the collision would not have taken place and. [the juvenile]. would have had a better opportunity to see the cyclist."

Bottom line - the police report debunked each and every comment made by Capt. Kelly in the days immediately following the crash.

-- Too dark to see? Sunset was at 7:01 and the accident occurred at 6:55. Weather was "partly cloudy."

-- Too Fast? Re-creation by police cyclist estimated speeds between 35-40.

--Didn't know the area? GPS data confirmed that Lloyd made 3 loops over the same route and

that Lloyd "slows at major intersections.This shows that Clarke had knowledge of the area and his route."

Why would local police make such WRONG statements to the press before the investigation was over? Why would they seem to aggressively protect the local juvenile against any claim that the boy might have caused the crash? Why were the police so quick to blame the cyclist, an out-of-town African-American businessman?

We will never know the true answer to these questions. Bob Mionske, former Olympic cyclists turned lawyer, wrote a column in Velo News recently detailed several recent cases in which either the cyclists were improperly blamed for causing crashes with motor vehicles or the motor vehicle drivers got off with no ticket or a "slap on the wrist." This is becoming widespread.

The verdict is still out on the Lloyd Clarke case. The police report was only recently completed [January 2008]. Sherol Clarke had to file a motion in court to get a copy, despite the fact that it is a public record.

Did the fact that Lloyd was an African-American visitor from Maryland into a virtually all-white very affluent Lake Tahoe city play a role in the police department's immediate and vehement defense of the negligent motorist? Were the police protecting the boy for some reason? Did they really feel they had conducted a complete and thorough investigation before they began issuing statements to the press about the bicycling who was going "so fast" that he "couldn't stop" before crashing into a car that turned left in front of him?

Sherol Clarke stood up and fought for her husband's legacy and good name. Her young daughter understood completely what the police were saying and what that meant. She knew her daddy to be a good and cautious man. Sherol and her daughter kept pushing police for more information, a better investigation, a better public statement. Finally, in the MAIT report, it appears they are getting it.

Too little, too late? That remains to be seen. On March 7, 2008 there is a hearing at which the juvenile is expected to be charged with more serious crimes based on the MAIT report. The Sheriff's Department may have more to say at that time. For now, we sit and wait.

Capt. Kelly DID have something to say about the MAIT report before it came out: According to an October 7, 2007 article, ". while Kelly said he still is waiting on the official investigation, he said it could come to a "convoluted conclusion, which may not include the entire logistics of the accident." Forgive me if I continue shouting expletives here.%&&$**(#

For now, we continue to sit and wait and see what happens. The simple facts are still true: Lloyd Clarke had the right of way and Lloyd Clarke is dead. Keep Sherol and her daughter in your thoughts!

Good Luck and Good Riding

Steve Magas

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[1] Steve Magas is an avid Ohio cyclist and trial lawyer whose law practice focuses on protecting the rights of riders. Steve has handled more than 150 "bike cases" for cyclists involving crashes caused by cars, busses, trucks, dogs, faulty products and more. Steve's unique "Bike Law" practice has been featured nationally in Lawyer's Weekly USA, and in several local publications. Steve is a co-author of a new book, "Bicycling and the Law," with Olympic cyclist-turned-lawyer, Bob Mionske. Steve was also a contributing author to that epic tome, "Bicycle Accident Reconstruction & Litigation and sits on the Board of the Ohio Bike Federation. You can contact Steve for a FREE CONSULTATION about your legal matter at 513-484-2453 or at BikeLawyer@aol.com.  He can be reached Toll Free at 888-883-2600.

Part One - INSURANCE

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

Can't you just picture it - maps laid out, clothes folded and ready to be loaded into waiting panniers, bike all tuned up, the smell of Teflon oil floating about the room. The last thing on the touring cyclist's mind as she/he goes through the Pre-Trip Checklist is the "BLS." Unfortunately, failure to consider the BLS can end up costing the touring cyclist time, money and the safety and peace of mind of his/her family! The BLS includes: insurance issues, estate planning and traffic/bicycling laws. We'll take a look at all three, starting with the always exciting topic of INSURANCE today!

INSURANCE ISSUES for the TOURING CYCLIST

Insurance? You don't need to worry about no stinkin' insurance, right? You're driving a BIKE not a car . what can POSSIBLY happen? [For this part of the article, let's assume you are staying inside the United States - things REALLY get crazy in the insurance world when you cross sovereign borders!]

Health Insurance

First, and foremost, before you leave the house make sure you are carrying all of your health insurance information. Keep it close at hand - better yet, pack your insurance card, or a copy, in a small [2"x3"] baggie with your ID, emergency contact information and list of medical allergies and store it visibly on your person - or in your helmet! If you are hurt on the road, unable to communicate and need emergency care or serious medical intervention you do NOT want healthcare professionals wondering who you are, who to contact and whether or not you've got health insurance! "Road ID" is a company that makes an excellent wristband product holding a plate with your emergency information or whatever you tell them to type on the plate!

WARNING: While I have not seen this in my "bicycle law" practice, I have learned from my "motorcycle law" practice that some health insurers are experimenting with limiting the benefits they provide if an insured is injured while riding a motorcycle or engaging in certain other "hazardous sports." As you might expect, motorcycle groups, such as the American Motorcyclist Association, are up in arms and preparing to do battle. However, under policies out there right now a motorcyclist can hit by a DRUNK driver and have NO health insurance coverage! If insurers find this effective, you can BET they will apply the concept to bicycling very soon! A bill is currently pending in Congress to stop this practice.

Homeowner's Insurance

Keeping your homeowner's insurance information with you is also important. Many people do not realize that their homeowner's insurance will provide coverage if they negligently run over someone or something! If you are going on an extended trip, take your agent's phone number and your policy number. If someone claims YOU did something wrong, causing them loss, damage or injury, you will need to contact you homeowner's insurance carrier right away!

Auto Insurance

- Medical Payments Coverage

Why would you need to take information about your automobile insurance policy on a 3 week bike ride? If you are injured in a crash with a motor vehicle you may find some financial assistance buried within your automobile insurance policy!

Most auto insurance policies provide, or offer, "medical payments" coverage. This coverage pays YOUR medical bills if you are in a crash with another car. Historically, if you were hit by a car while riding your bike your "medical payments" coverage could be used to pay some of your medical bills even though the coverage is found in your automobile policy and you were not driving your car when you got hurt.

WARNING: Recently, I came across the first automobile insurance policy I have seen, from Nationwide Insurance, which LIMITS "medical payments" coverage and EXCLUDES paying your medical bills if you are hit by a car while riding your bike! Read your policy closely before you leave. The language may be difficult to decipher, or ambiguous.

You may want to ask your agent if you are covered in such a scenario. If the agent says "Yes," then IMMEDIATELY fax a letter to the agent [and keep a copy] restating your question and his answer and thanking him/her for the advice. State in your letter that you are relying on this important advice because you often ride your bicycle in situations where you are in close proximity to motor vehicles. Even if the agent is wrong, your letter may serve to extend coverage anyway, depending on the case law of your state, as an agent's statements of coverage may bind the carrier.

Auto Insurance

Uninsured/Underinsured Motorist Coverage

One all too common scenario many road riders regularly face is the cowardly motorist who zooms by and runs you off the road, throws something at you or otherwise causes a crash in which the cyclist is injured. These "phantom motorist" cases are tough, but the law of many states provides for a recovery under the "uninsured/underinsured motorist" ["UM/UIM"] provisions of your auto insurance policy.

I advise my clients to buy as much "UM/UIM" coverage as they can afford because it is coverage that pays YOU when you need it the most! The "uninsured" part of this is obvious. If you are struck by motorist who simply has no insurance, your "UM" coverage should pay your injury claim just as if it was the motorist's coverage.

The "underinsured" may not be so obvious. Let's say the motorist who runs you over actually has pretty good coverage - $100,000.00 policy limits. However, because of the severity of your injuries, wage loss, medical bills, pain, permanent injuries and the like, your claim is worth a lot more than that - say, $500,000.00. The motorist, despite his excellent coverage, is considered "underinsured" and your policy's "UIM" coverage may be used to pay more towards your claim depending on your policy limits. Again, the law varies dramatically from state to state on this one!

Are you carrying an Umbrella?

Do you carry any type of excess or umbrella insurance? These types of policies are designed to go over the top of all other policies and only come into play in extraordinary occurrences in which all other available insurance is used up and you still have losses. An umbrella policy is usually written with large policy limits - $500,000.00 or more. You are required to carry certain minimum policy limits for underlying coverage. I advise ALL bike riding clients to consider an umbrella policy. They are typically very inexpensive, provide very high policy limits and, in that once in a lifetime situation, can save your financial life or prevent a bankruptcy! Consult your insurance professional for details.

Real Life Insurance Example

So here's a real-life example of insurance coverage in action. My client suffered a dangerous fractured neck when a motorist backed out of a driveway directly in front of him as he rode down a hill. He needed surgery to fuse his neck. The motorist, unfortunately, had Ohio's pitiful state minimum auto coverage - $12,500.00 [you know. the "keep you legal for less" limits they cheerfully sing about on TV]. The client's medical bills were in excess of $80,000.00. His wage loss exceeded $40,000.00.

Had he not taken steps to protect himself, this cyclist would have been stuck with the $12,500.00 policy limits. Of course, he could have sued the motorist and possibly won a big judgment. However, getting to a "big judgment" takes time and money. The plain truth is that most people who carry the state minimum $12,500.00 policy limits simply don't have the assets to PAY a big judgment. If they did, they would carry more insurance!

Fortunately, my client had purchased excellent auto coverage. This included $300,000.00 in UM/UIM coverage and $10,000.00 in "medical payments" coverage. He used the medical payments coverage to pay his "co-pay" for the surgery and other treatment.

In addition, my client maintained an excellent disability insurance policy through his practice that kept him afloat financially while he was off work completely for more than two months. Finally, my client purchased an umbrella policy with $1.0 million limits. Since his claim had a value in excess of his $300,000 "UM/UIM" limits, we were able to tap into the umbrella to resolve the case.

My client, like most of us, hoped he would never need this range of coverage. However, the "once-in-a-lifetime event" that triggers such coverage happened to him between the end of his workday and dinner one night!

Part TWO - ESTATE PLANNING

Last month I ventured away from safety, accidents and riding the bike to consider the BLS - Boring Legal Stuff - related to insurance and bicycling. This month the second [and last] BLS installment: Estate Planning.

Why does the bicyclist need to worry about "Estate Planning?" What the heck IS "Estate Planning" anyway? Sounds rather vague and morbid! Why should a BICYCLIST worry about Estate Planning for a few minutes instead of cleaning her/his trusted steed?

"Estate Planning" for most of us [us NON-millionaires, that is] consists of getting a will prepared, as well as possibly a trust and, even more important for the bicyclist, a couple of "Powers of Attorney." For most people, their estate planning goals are to provide financially for their surviving spouse, protect their assets, insure that their children are physically and financially cared for, minimize cost, taxes and delay and insure that their plan for the distribution of their life's work is done the way they want it. Other goals may include providing for children of a prior marriage, making sure that business interests are taken care of, providing liquidity to pay bills and taxes and avoiding family conflict and strife!

Here's a little "12-Step" program for getting the BLS done in YOUR life!

1. Make a will.

2. Consider a trust.

3. Make health care directives.

4. Make a financial power of attorney.

5. Protect your children's property.

6. File beneficiary forms.

7. Consider life insurance.

8. Understand estate taxes.

9. Cover funeral expenses.

10. Make final arrangements.

11. Protect your business.

12. Store your documents.

YOUR WILL & TRUST

We all would like to live forever, or at least long into our "golden years." It seems that many adults fear "making a will" more than death or dealing with a life insurance agent! The thought of talking about "end of life" issues scares many people and prevents them from getting their will done. However, the legal effect of NOT dealing with these issues should scare you even more!

Everybody Needs a Will

In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent.  If you have small children you should have a will - no question about it - you are committing "Parental Malpractice" if you don't! Under Ohio law, if you have no will, then the Probate Court Judge determines who will take care of your children until they are 18 years old. Without a will advising the court about who you want to inherit your property, Ohio law tells you exactly who gets it. Without a will or trust in place, your young children take possession of your entire estate, including all life insurance proceeds and such, at the tender age of 18. Failure to have a will or trust prepared can cause your estate to incur taxes of expenses which could be avoided.

What is a Will?

A Will is a legal document in which you:

· Name the Guardians of your children, as well as alternative Guardians if your first choice is unavailable.

· Describe who you want to inherit your property.

· Name the "Executor" or "Executrix" of your estate - the person responsible for gathering up your assets, paying your debts, and seeing your estate through the Probate process such that your property passes to the appropriate people.

· Provide for passing assets to a Trust.

Not just any writing listing your wishes can be a legal will. Ohio law is very specific about how the will must be signed and witnessed. Failure to follow these rules exactly can cause your wishes to be ignored by the Court.

Trusts: Not Just For Millionaires

A Trust is also a legal document. However, trusts can be extremely diverse in what they do. Today, though, we're going to limit our discussion to a very basic form of trust - one that holds your assets for your children and distributes when they are a little older - say 22 or 25 or 30! During the estate planning process we ask people to look at the life insurance they have purchased, or have available through work, their retirement holdings and all other assets, and determine how much money could be available to their children in the event of their death, or should both spouses die. Often, this ends up being a rather considerable sum of money - more than most people feel like dropping into the laps of their children at age 18!

This is where the Trust comes into play. In your will, you can leave the majority of your estate to a Trust or Trustee, should your spouse be unavailable. In the Trust, you designate when you want your children to have these funds and how you want the Trustee to handle those funds. This distribution can be written in just about any manner that makes sense to you. Want to encourage or pay for college? Your trust can provide for that. Want to give the children a specific sum each year until they reach 25 or 30? Your trust can provide for that. Want to give your Trustee discretion to distribute money to meet each child's specific needs? Your trust can provide for that. In essence, you figure out what works for you and your lawyer can write a Trust to make it work!

POWERS OF ATTORNEY

What are POA's?

A Power of Attorney ["POA"] is a legal document that gives someone ELSE the power to make decisions for you. POA's are of CRITICAL importance to the bicyclist. If you are in a crash and are unconscious or unable to make decisions, a POA gives another person the legal right to make those decisions. The "catch?" A POA must be signed by you BEFORE you are unconscious or incompetent and must contain particular language to be valid after you become incompetent. More importantly, if you do not have health care POA's in place before you are hurt, your family could be in a "Terry Schiavo" situation, where no one has authority to make medical or end-of-life decisions for you.

Financial POA

In Ohio, a "durable" power of attorney is one containing particular language set forth in the Ohio Revised Code such that the POA will continue in force in the event of the incompetency or death of the person signing the POA. "Incompetence" here means that the mental status of the person signing the POA has changed due to illness or medical condition, injury or otherwise, such that the person is incapable of handling his own affairs. For the bicyclist this usually means an accident-caused head injury which renders the rider unconscious, comatose or in an altered state of consciousness.

In a financial POA, the person you choose will have the power to pay your bills or do anything else financially that YOU could do. A POA can be very broad - the power to everything you could do. Most people are more familiar with a very narrow and limited POA- the pink forms at the BMV which permit you to give somebody else the power to get your license plates or sell your car.

The financial POA must be signed when you are competent. If a motorcycle crash renders you unable to make financial decisions, it is too late to create a POA - your assets may be frozen, unavailable to your spouse or family, and your bills might go unpaid or your credit could be damaged.

The Schiavo Case & "Advanced Directives" in Estate Planning

The Terry Schiavo case was a real medical and legal wake-up call for many Americans. The case provided a public window into an Estate Planning "Worst Case Scenario" - a person who was unconscious, but not "terminal," who had never prepared any written instructions advising health care providers as to how she wanted to be treated. Today, so-called "advanced directives," such as a special POA for Health Care and a Living Will, can take care of those issues.

A "Durable Power of Attorney for Health Care" is a legal document that authorizes another person of your choosing to make health care decisions for you if you are unable to make informed decisions on your own.

A "Living Will" is a document that contains your written wishes and instructions for care at the end of life. You can state your preferences regarding aggressive life-prolonging treatment.

Ohio law now specifically provides for "Living Wills" and "Health Care Powers of Attorney". In fact, a simple Google search reveals numerous websites on which forms for both, approved by the Ohio State Bar Association, The Ohio Hospice & Palliative Care Organization and others, can be found. While you can prepare these forms without counsel, you must read them extremely carefully, fill in the blanks appropriately and insure that the witness and notary requirements are followed exactly. Failure to do so can render the forms worthless at a time when you need them the most!

SUMMARY

For most people, these five documents: Will, Trust, POA, Living Will, Health Care POA - make up their "Estate Planning" package. In addition, I would strongly urge bicyclists to use the Estate Planning process as a time to organize your papers and get them in one place, to consider a safe deposit box for important papers, to review and update their life, health and disability insurance and consider any estate tax issues in their situation. Further, this is a great time to discuss your Estate Planning decisions, particularly your end of life decisions, with others. Morbid, perhaps, but for the casual or serious rider, this could be one of your most important conversations!

GOOD LUCK AND GOOD RIDING!

Steve Magas - The Bike Lawyer!

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[1] Steve Magas is an avid Ohio cyclist and trial lawyer with Phillips Law Firm, Inc., whose law practice focuses on protecting the rights of riders. Steve has handled more than 150 "bike cases" for cyclists involving crashes caused by cars, busses, trucks, dogs, faulty products and more. Steve's unique "Bike Law" practice has been featured nationally in Lawyer's Weekly USA, and in several local publications. Steve is a co-author of a new book, "Bicycling and the Law," with Olympic cyclist-turned-lawyer, Bob Mionske. Steve was also a contributing author to that epic tome, "Bicycle Accident Reconstruction & Litigation and sits on the Board of the Ohio Bike Federation. You can contact Steve for a FREE CONSULTATION about your legal matter at 513-484-2453 or at BikeLawyer@aol.com.  He can be reached Toll Free at 888-883-2600.

By Steven M. Magas, Attorney At Law[1]

I expected to write about the new "Better Biking Bill" that flew through the Ohio legislature in June and was signed by Governor Taft at GOBA recently. This bill dramatically improves Ohio law and will make life better for cyclists in Ohio. However, in the past week, the actions of a fellow by the name of Anthony Gerike interrupted my work on that article.

Mr. Gerike was the operator of a motor vehicle which, on Sunday, July 16, 2006, apparently went left of center and drove into a group of ten or so riders. Tragically, two, Amy Gerhing and Terry Walker, were killed. Both were Cincinnati Cycle Club members out for a ride with friends on a gorgeous Sunday morning. Both were avid cyclists who trained and rode for fun and for "causes." Both were just really nice people.

The following week brought television and radio news coverage, Memorial Rides, interviews with the Club President and friends, and heated discussions on the club's Forum. What can "we" do to protect our right to ride when tragedy strikes? What can YOU do? What can your local club do? What can your local police department or local government do? What can be done at the state level?

What "we" can do is continue to ride. We need to continue to use the roads, continue to treat motorists with respect and continue to demand the same respect in return. I was forced to ride one of the C.C.C. Memorial Rides on my motorcycle due to meetings I had to attend before and after the ride. I was very grateful at the respectful way I was treated by the mourning cyclists. Riders would signal me as I slowed to pass, to let me know it was OK ahead. Riders smiled and waved. The hand signals I received were all of the friendly variety with none of the single digit gestures that sometimes crop up.

This behavior reinforced a common theme I've written about for many years. When "we" ride, and by that I mean each and every person who rides a bike on the roadway, "we" become Ambassadors for Cycling. The motoring public's perception of cycling and cyclists is shaped by each encounter with cyclists. Watching cyclists blow through red lights or stop signs causes that perception to tick in a negative direction ever so slightly. Behavior in the nature of what I experienced generates a very positive response - these folks don't want to hold me up, they want me to get by and will help me do so safely. Watching cyclists behave in a predictable, "vehicle-like" manner on the roadway can only enhance our perception. EACH encounter is important and EACH of us has to remember we are an "Ambassador for Cycling" at all times!

What can YOU do when someone is hurt or killed in a tragic crash caused by an errant motorist? Get involved. Talk about the issues raised. Use the crash to advise your non-cycling colleagues about the rules of the road. Use the crash to emphasize the overall SAFETY of road cycling - deaths are NOT commonplace, but an aberration. Use the crash to tell the world that we're on the roads and we're here to stay. Don't let print or radio voices start a "Let's Put Bikes On Bikepaths" campaign. Write letters to the editor. Call into radio shows. In my experience, such tragedies can result in knee-jerk responses by local or state legislators to "take action" in order to "protect" cyclists. This "action" usually results in cyclists being banned from a particular roadway or being ordered to wear helmets or some such thing. Your swift and visible [letters] or audible [call in and talk!] action declaring, not defending, our right to the roadway and supporting strong police and prosecutorial action against those who maim or kill cyclist will assist in protecting our right to the roadway.

What can your CLUB do in response to tragedy? I've often counseled clubs on trying to get a consistent message out through the media when these events happen. Each situation is different, but frequently the club wants to educate the public, show contempt for the wrong doer, support the family of the victims, and take action to insure the event does not occur again. Letters to the editor, letters to police, prosecutor or judge. Memorial rides. A "White Bike" memorial at the scene. Television and radio appearances.

Good Luck & Good Riding

 

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[1] Steve Magas is an avid cyclist and Ohio trial lawyer with Phillips Law Firm, Inc.who has handled more than 150 "bike cases" in the past 25 years, representing injured or killed cyclists involved in car/bike crashes, dog attacks, injuries from faulty frames or components or insurance issues. Steve is an advocate for cycling, lobbying at the national, state and local levels, writing articles and essays, and representing cyclists pro bono in important cases. Steve can be reached for a FREE CONSULTATION at BikeLawyer@aol.com or at 513-484-BIKE or Toll Free at 888-883-2600.

By Steven M. Magas, BikeLawyer@aol.com [1]

In addition to having had the honor of representing more than 150 injured or killed cyclists over the past 25 years or so, I have also been actively involved in the "politics of cycling." These political battles have increased in intensity recently and in this article I'm going to show you how YOU can become involved in "bike politics" TODAY, within two minutes after reading this article!

HOT ISSUES AT THE STATE LEVEL

On Tuesday, May 23, 2006, I rode my motorcycle to Columbus, Ohio and watched a most raucous day of political wrangling on the floor of the Ohio Senate. The GOP/DEM fights were partisan and intense, with the speaker actually ordering the microphone of one of the state senators turned OFF during debate! I was there to provide testimony to the Transportation Committee supporting passage of the "Bike Bill" which the Ohio Bike Federation and others have been pushing for quite a long time. Our 2:30 pm Conference Committee hearing didn't start until almost 7:00 pm Tuesday night due to the "politickin" going on!

When the Committee finally met, the chair, Senator Armbrustor, put our bill to the front of the agenda. We had been led to believe that this was a "shoo in" - and that the bill could be favorably voted on by the Committee that evening.

A few of us offered very brief testimony due to the lateness of the hour. Suddenly, things changed. The minority senators offered up a surprise amendment - a Mandatory Helmet Law! This took us by surprise, to say the least. Fortunately, this was on issue on which I have done considerable research and when a question arose over the definition of the word "roadway" in the bill, I was able to provide that information on the spot as well as set forth arguments as to why such an amendment would be unwise. After some snarly debate, the amendment was killed by a partisan vote and the bill was unanimously adopted by the committee. As of this writing [8:00 am, Thursday, May 24] I can report that the bill was voted on by the entire Ohio Senate yesterday and passed there as well. Since the bill has already passed the Ohio House, it will now go to Governor Taft's desk for signature!

You can read about this important bill and the changes it implements to make life better for cyclists at www.ohiobike.org. The Ohio Bike Federation is also pushing for passage of another bill - SB 158. We are part of a coalition of cycling and motorcycling groups urging the state to pass this bill. The bill would increase penalties for motorists involved in "minor" traffic accidents relative to the injuries those "minor" crashes cause. YOU can get involved TODAY by emailing the Senators on the Transportation Committee and thanking them for supporting bicycling in Ohio. You can ask for their support on SB 158 as well! You can get information from the OBF website or go to the legislature's website which provides a very easy search program to find bills, YOUR representatives and Committee members.

THE NATIONAL BIKE SUMMIT

For the past several years the League of American Bicyclists has sponsored the National Bike Summit. Bicycle advocates from all over the country converge on Washington, D.C. for a Wednesday, Thursday and Friday filled with conferences, lobbying, networking and fun.

Wednesday sessions are intense at times - multiple sessions are offered where you can observe the movers and shakers in the bicycling world talking about their pet projects, successes and failures. At the end of the day, all advocates are brought up to speed on the "hot button" national cycling issues in preparation for the next day's of lobbying.

Thursday is "Bike Day" on Capitol Hill. Meetings are scheduled with members of virtually every Senator's "transportation people" as well as House representatives. Our 300+ contingent of cycling advocate each wears a brightly colored cycling pin. We visited almost all of Ohio's representatives, meeting personally with several. Our agenda was well-liked by ALL!

In March 2005, we pushed the Transportation Bill. In August 2005, President Bush signed "SAFETEA-LU," which includes over FIVE BILLION dollars for cycling. In March 2006, we pushed for passage of a Bicycle Commuter Act that would amend the tax code to provide commuting fringe benefits for cyclists! That bill was introduced in May, 2006.

YOU can participate. Go to www.bikeleague.org. Read the stuff we're working on. Get email addresses for your local Senator and representative's. Send them a note urging them to support the bills! Better yet, GO to Washington with us next March. It's a great time to be there! Bring a bike. Learn how to lobby. Ride the Rock Creek Parkway and be part of your government! 

2009 is going to be a HUGE and critically important year for bicycling.  We'll have a new President and the Transportation Bill will be hotly debated.  Why don't YOU make it a point to start getting involved NOW~!

LOCAL POLITICS - ACT NOW TO PROTECT YOUR RIGHT TO RIDE YOUR FAVORITE ROADS

I was very surprised to see the front page headline "Round Bottom Road Rough For Truckers, Bikes" in a recent Forest Hills Journal article. The article went on to describe another raucous political session - this time an Anderson Township Trustees meeting where bike rides were chastised by a business owner.

Round Bottom Road is a mile or so from my house and is an extremely popular route for cyclists due to a lack of traffic, a country setting and nice long, rolling stretches. You don't see a lot of kids, mostly experienced cyclists riding for fitness or fun. However, Doug Evans, owner of Evans Landscaping, has his business on Round Bottom and every spring his huge dump trucks roll out, providing much of suburban Hamilton County with mulch, topsoil, gravel, boulders, sod and more. Mr. Evans decided to go to the Trustees meeting to complain about those pesky bikers.

Mr. Evans' remarks were, at best, callous as he took the "This road ain't big enough for both of us" approach of a Texas gunslinger. He complained that "something" has to be done about these bikes on the road before some car or truck wipes out "not 2 or 3 but 10" bike riders. His key point seemed to be that HE and his business "paid taxes" and bike operators do not.

The key issue here is NOT taxes. However, bicycle riders DO pay taxes - lots of them. Fuel taxes and licensing fees are paid by ALL motorists. Plus we pay income taxes [federal, local & state], real estate taxes, sales taxes and more! Indeed, those of us who buy mulch and other products from Mr. Evans are paying HIS taxes.

Taxes are not the issue, however. Roadways in this country are open to ALL vehicles - cars, trucks, busses, bicycles, slow moving farm equipment, Amish buggies and more. Freedom of travel is a cherished fundamental right that goes to the very essence of the "freedom." This right has been recognized for thousands of years. This notion that big trucks rule the roads runs counter to the concept expressed in numerous U.S. Supreme Court decisions that ".the right to travel is a part of the 'liberty' of which a citizen cannot be deprived without due process."

In Ohio, the right to travel by bicycle has always been recognized in the law and Ohio Senate, just last week, passed a bill which reaffirms this right! Mr. Evans' knee-jerk reaction to his company's legal obligation to "Share The Road" with cyclists is misguided, at best, and downright dangerous at worst!

I sent a letter directly to Mr. Evans complaining of his comments, but also offering to assist as a liaison between him and the cycling community rather than play the Rhetoric Game in the papers. I advised him that he and his good will would LOSE any such game since cycling has such a strong grass roots appeal! To date, there has been no response.

YOU can become involved in this or other local issues MUCH more quickly. Stay aware of articles and local issues.Send a note supporting cycling to the author of the article or to the paper or to your OWN paper! Keep the pressure on our elected officials. They work for YOU and need to know what YOU think is important! Keep track of local cycling debates - Get Involved - Make your voice known. If you are not sure WHAT to say, send me a note or contact your local cycling club or the Ohio Bike Federation [www.ohiobike.org] and I'm sure you will receive a warm response!

In TWO minutes, YOU can become an aggressive, active and educated advocate for cycling at the national, state or local levels! WHAT ARE YOU WAITING FOR? Crank up the computer and let's goooooooo!

Good Luck & Good Riding

Steve Magas

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[1] Steve Magas is an avid Ohio cyclist and trial lawyer with Phillips Law Firm, Inc., whose law practice focuses on protecting the rights of riders. Steve has handled more than 150 "bike cases" for cyclists involving crashes caused by cars, busses, trucks, dogs, faulty products and more. Steve's unique "Bike Law" practice has been featured nationally in Lawyer's Weekly USA, and in several local publications. Steve is a co-author of a new book, "Bicycling and the Law," with Olympic cyclist-turned-lawyer, Bob Mionske. Steve was also a contributing author to that epic tome, "Bicycle Accident Reconstruction & Litigation and sits on the Board of the Ohio Bike Federation. You can contact Steve for a FREE CONSULTATION about your legal matter at 513-484-2453 or at BikeLawyer@aol.com.  He can be reached Toll Free at 888-883-2600.

The “Hurt Study” is the most frequently cited reference point for motorcycle accidents. Harry Hurt published this epic tome in 1981 after closely examining almost every aspect of some 900 motorcycle crashes in the Los Angeles area as well as reviewing an additional 3600 traffic reports.

Hurt’s numerous findings can be found through an easy internet search for “Hurt Report” and the full report, several hundred pages, can be purchased from the federal government. A key finding was that 75% of crashes involving motorcycles involved one or more other vehicles. In two out of three of those crashes, the OTHER vehicle violated the motorcycle operator’s right of way and caused the crash. This means the non-motorcycle operator was at fault two-thirds of the time.

It is in these cases where law, medicine, insurance and insurance companies, lawyers and motorcycles often intersect.

If I took a phone call on a claim involving injuries caused by a 1981 motorcycle crash, the Hurt study suggests the odds are in favor of the motorcycle operator being without fault. Hurt tells me that weather, component failure and roadway defects are likely NOT involved as they each contribute to less than 1 or 2% of all crashes. Hurt also tells me that the motorcycle rider was likely close to home at the time of the crash and was likely involved in a short trip relating to shopping, errands and the like.

What if my injured motorcyclist/caller is from Ohio? How do the numbers shake out in Ohio? The 2004 Ohio CRASH FACTS, published by the Ohio Department of Transportation, show an interesting trend in motorcycle accidents which is being duplicated throughout the country. Crashes are increasing. In 2000, there were 3,520 motorcycle crashes noted. In 2004, ODOT noted 4,161 crashes. Motorcycle deaths and injuries have also increased. 120 riders died in 2000, and 133 died in 2004. There were 3,011 injuries in 2000 and 3,543 in 2004.

What else is the state of Ohio reporting about motorcycle crashes? Of the 4,161 crashes in 2004, ODOT reports that the motorcyclist was at fault for an incredible 54.4% of the injuries and death. Non-motorcycle operators were deemed “at fault” in only 32.6% of the crashes while pedestrians [0.2%], animals [5.5%] and “not determined/not stated” [7.3%] make up the rest. Now, we can argue all day over whether the determination of who was truly “at fault” was fairly and accurately assessed. Nonetheless, that number is out there and published and it only serves to tarnish the image of motorcycle operators.

Was Hurt wrong? Have things changed since 1981? Are motorcycle operators less careful today than they were in 1981? Well, in one regard riders are certainly more careful. In 1981 there were 4,963 crashes, compared to 4,161 in 2004. A long lens look at the numbers is revealing. Motorcycle crashes in Ohio peaked in 1980 with a total of 5,194 crashes. The numbers show a general downward trend through the 1980’s and 1990’s, with a low of 2,160 in 1997. Since 1997, the number of Ohio motorcycle crashes has increased dramatically each year.

Another troubling trend is the fact that the number of crashes “per 100,000 registered users” is also going up. If the increase in crashes could be blamed on the fact that more vehicles are out there, that might be understandable. In fact, in the 1980’s and 1990’s when the number of crashes was decreasing, this rate “per 100,000” actually went DOWN from a high of 91.22/100,000 bikes in 1980 to a low of 56.20/100,000 bikes in 1996. The fact that crashes are on the rise and number of crashes per 100,000 registered bikes is up means more and more riders are crashing, getting hurt and getting killed.

Hurt found that some 25% of all motorcycle accidents were single vehicle accidents – think of that – one out of four crashes did not involve another vehicle at all. This means the motorcycle operator lost control, for some reason, and crashed. The Ohio numbers are more staggering – Crash Facts indicates that 61 of the167 motorcyclists killed in 2004 died in single vehicle crashes.

So what “reasons” did Hurt find to be compelling? Well, his research revealed that two out of every three single vehicle crashes were caused by rider error! 2004 Crash Facts, as noted above, put that figure over 50%.

Some argue the failure of motorcycle riders to be appropriately trained is a key factor in this rise of motorcycle accidents, injuries and deaths. The MSF classes and other “driver’s ed” classes provide invaluable assistance to even the most experienced riders. As I watch my 16 year feel his way around the road in my little car, I am reminded of how many folks buy a big bike and THEN learn to ride. Is this a contributor to higher accident rates? Only time and more money and research will tell. However, another indicator of this factor may well be the fact that the average age of those injured or killed in motorcycle crashes is also climbing! Research in this area will be the basis of a future column here.

Another factor is the obvious fact that many of today’s riders, present company included, are starting [or resuming] their riding later in life – a time when they can afford to buy the big, fast cool bikes on the market today. Getting into dad’s Honda Accord at age 16 and driving around town is a LONG way away from a new motorcyclist hopping onto a BMW K1200S and realizing as he approaches a curve that a three digit speed number won’t cut it!

The NHSTA recently released their predicted figures for last year… their Headline? “Motorcycle Fatalities Are Projected To Increase for the EIGHTH Year in a

Row – More than a ONE HUNDRED PERCENT Increase Since 1997”

Let’s be careful out there!

GOOD LUCK & GOOD RIDING!

I received in today’s mail my latest copy of that epic tome, “Motorcycle Accident Reconstruction & Litigation,” by Ken Obenski, a well known forensic expert, and lawyer Paul Hill. As a contributing author to the sister volume, “Bicycle Accident Reconstruction & Litigation” I was curious to see what they had done with the subject relative to motorcycles. This 1130-page volume discusses the engineering and legal process of reconstructing motorcycle crashes in the sort of wonderful technical detail that only us trial lawyers [and former math majors] could love! Along the way, Obenski, an experienced rider himself, offers some wonderful insight into common rider errors which lead to self-induced crashes and better tactics for dealing with commonly encountered hazards.

STEERING

Steering is the thing that sets motorcycles apart from all other vehicles. As EVERY reader of this magazine knows, they clearly do not steer like cars, but they also do not steer like bicycles, mopeds, trikes, forklifts or even airplanes! Many of us understand, instinctively or by virtue of taking the MSF class, how to lean and guide our bike through the twisties, but could not begin to analyze the physics of it. Unfortunately, too often reconstructionists and lawyers find that motorcycle crashes are caused by the operator errors while steering in a crisis.

As I’ve stated in earlier columns, a shocking number of deaths and injuries from motorcycle crashes come in single vehicle accidents. In Ohio last year, 158 motorcyclist operators, and 19 passengers, were killed. More than half of those crashes were single vehicle crashes. The motorcycle operator was listed in the police report as being “In Error” in 53% of the crashes, leading to 115 deaths and 1,849 injuries. Many [possibly as many as 40%, according to Obenski] of these deaths and injuries relate simply to improper steering.

I like the idea presented in one popular motorcycling magazine that while most riders steer a motorcycle fine in good times, the critical issue is how the “nut that connects the handlebar to the seat” will perform in a crisis! This glaring weakness is frequently exposed only after a crash occurs!

Unfortunately, many panicked riders turn INTO, and not AWAY from, a suddenly appearing obstacle. By turning the handlebars away from the obstacle to try to avoid it, the rider unknowingly counter-steers the bike TOWARDS it. The concept of counter-steering is covered in some depth in the MSF classes. Many of us don’t practice it or think about it after “graduation” until a sudden emergency arises!

Turning the bars left and leaning left to get away from a hazard to the right amounts to asserting two “contradictory inputs.” The bike must obey the laws of physics [which can never be skirted], and will always follow the prevailing input, regardless of the rider’s intent! The accident reconstructionist will often be told that the bike just “locked up” in such a crash. Yet, the bike checks out as normal. When the operator turned the bars “away” from the hazard and tried to lean that way also, “…the gyroscopic effect of the front wheel offers such high resistance to this effort that it will feel as if the steering is ‘locked’” and a crash will ensue.

Imagine now an inexperienced rider, on a big, fast bike, heading into a corner too fast. Realizing he can’t make the curve, he tries to brake and “steer” harder “into” the curve, but ends up counter-steering his way into a violent crash.

Lesson 1 – Know How To Steer & Panic Steer!

“LAYING IT DOWN”

How many times have you heard it? “I knew I was going to crash, so I just laid it down?” Well, accident expert Obenski says “Laying a bike down makes no sense in 99.99% of all emergency situations.” Why? The main reason is that once you lay it down you’ve played all your cards – you have absolutely no other options except to accept your fate. Obenski describes it like this: “The bike becomes a ballistic object that will slide in a straight line with a drag factor of about 0.5 and, with rare exceptions, cannot recover its normal riding position until it stops.” If you keep the bike UP, you have options, maneuverability and alternative strategies which almost always make more sense. Even standing on the pegs and trying to JUMP OVER a crash may be preferred over sliding into it!

PERCEPTION/REACTION

Accident reconstructionists and forensic engineers frequently measure and discuss “perception/reaction” times. This relates to idea that there is a time lag between the brain’s perception that life has gone from “good” to “not good” and a human being’s reaction to that realization. 1.5 seconds is a common “perception/reaction time” used by experts in analyzing daylight accidents. Thus, it takes a motorcyclist about a second and a half to “perceive” the danger of a guy turning a pick-up truck into her lane, and to “react” by taking some evasive maneuver. This time becomes critical when analyzing whether the rider could have avoided the crash.

At 60 mph, the motorcyclist travels 132 feet, almost half a football field, in that second and a half . If the vehicle is only 90 feet away when it turns left in front of your bike, it was probably physically impossible for you to “perceive” the danger and “react” before hitting it at 60 mph! Perception/reaction times are unique to each individual and change with age, experience, stress, weather, visibility, intoxication level and more!

Another common problem with inexperienced riders [and some with much experience] is that they are simply not sure what to do in a sudden emergency. Again, this is discussed at some length in the MSF classes. However, in reconstructing crashes we know that riders sometimes choose evasive action that “seems” good, but may simply be wrong, as in our counter-steering example above. Even worse, as Obenski eloquently states, “…sometimes riding a motorcycle is like combat in that the one thing you can be sure will be wrong is indecision!” In one study, a full ONE-THIRD of riders did NOTHING in a panic situation – they didn’t even apply the brakes!  You must take action, the right action, to either avoid a crash, or minimize its impact.

Lesson 2 – Learn What To Do When Life Is Not Good and PRACTICE Before Life Changes!

BRAKES & WEATHER

Today’s motorcycles have incredibly powerful front brakes. That point is drilled into new recruits by the MSF drill sergeants. Although it’s a lousy idea, the front brake CAN provide 100% of the stopping power, and get the back of the bike off the ground! It’s better, of course, to split the braking between front [70% or so] and back [30% or so]. This is completely opposite the bicycling mantra of maximizing the rear brake in order to avoid being thrown head over handlebars. Perhaps this is why many new riders tend to overuse the rear brake. Faulty braking technique is found to be a factor in many motorcycle crashes.

Locking up the brakes is never a good idea since locked tires have “no directional stability.” Yet, it is an easy thing to do on a motorcycle, particularly the rear brakes. You should learn, BEFORE a panic situation, how much force you can exert on that rear brake pedal before they lock up. Once locked, the rear will try to pass the front! While perhaps mildly disconcerting in a car, this is frequently an unrecoverable event on a bike and can lead to catastrophic results!

As you might expect, bike brake performance is “highly rider-dependent.” Operating a motorcycle requires far more technical skill than operating a car but many of us never “practice” – we just ride! Going over those “parking lot” drills from your MSF class from time to time is a GREAT idea!

Lesson 3: Practice, Practice, Practice…

FINALLY

I commute virtually year round. As I rode home into and out of a series of high intensity storms last night, I tried to keep Obenski’s words in mind. “As long as acceleration in any axis is kept below the friction coefficient a motorcycle can be driven even on wet ice!” In other words, slow down, adjust your thinking, and watch out for those areas of the roadway where the “friction coefficient” may be lessened by rain– areas like intersections, where traffic slows, or the center of the lane, where oil drips. Rain, after a dry spell [like last night’s here in Cincinnati], creates particularly treacherous conditions as the water mixes with the oils and other stuff on top of the pavement to create a slick surface for cars, trucks, busses AND bikes!

This is just the beginning of an extensive forensic analysis of motorcycle accidents I will undertake in these articles. As one who routinely represents injured motorcyclists, it seems to me that cars, trucks and busses are forever interrupting the right of way of motorcyclists! Hopefully, this will never happen to you, but, if it does, try to remember one more bit of scientific wisdom from engineer Obenski – “biology generally makes a softer landing point than masonry…”

GOOD LUCK AND GOOD RIDING!

Here's some motorcycle news from http://www.webbikeworld.com/Motorcycle-news/blog/
The Accident Statistics released for 2006 are sad, but predictable. Motorcycle deaths went UP 5% in 2006, from 4576 to 4810, and injuries increased 1%, from 87,000 to 88,000. This is still a far cry from the 30,500 killed and 2.3 MILLION injured in passenger cars in 2006, but the injury/death numbers for cars are going down while the injury/death numbers for motorcycles continue to climb!

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US MOTORCYCLE NEWS - SUMMER 2007

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U.S. Motorcycle Accidents Increase for 9th Straight Year; Now Higher Than Pedestrian Deaths

July 23, 2007 - The U.S. National Highway Traffic Safety Administration (NHTSA) released their annual Traffic Safety Assessment for 2006 (.pdf file) today, and motorcycle deaths have unfortunately increased for the ninth straight year. In fact, the 4,810 motorcycle deaths in 2006 now exceed pedestrian deaths at 4,784. Motorcycle fatalities in 2006 increased by 234 (5.1%) over 2005 (4,576). 88,000 motorcyclists were injured in accidents in 2006, an increase of 1,000 from 2005.

Meanwhile, the New York Times reported on an Organization for Economic Cooperation and Development and the International Transport Forum study on July 24 that the U.S. now ranks 42 out of 48 countries in the number of road fatalities per capita (all vehicles, not just motorcycles). Australia, Britain, France, Germany and Japan all have made significant improvements but the U.S. has not.

The U.S. was No. 1 in 1970 in fatalities per distance driven but now ranks 11th, with some countries reporting rates that are 25 percent lower. Here's a graphic comparing the accident rates over time.

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U.S. Motorcycle Sales Report for January - June 2007

July 24, 2007 - U.S. Motorcycle sales are mixed over the first 6 months of 2007. Dual Sport sales continue to improve, with a sales gain of +2.8% from 2006 for a total of 21,322 in the first two quarters of 2007.

Meanwhile, sales of off-road motorcycles are continuing to suffer. There were 19,340 fewer sold so far in 2007 over 2006, which is a 15% decrease. So far only 109,893 off-road bikes have been sold this year.

Street bike sales are also off slightly, down 5.0% from the same time period in 2006, with 389,765 units sold, compared to 410,421 sold during the first 6 months of 2006. Scooter sales were relatively steady, down 0.6% (181 units) at 29,719 versus 29,900 for the same time period in 2006.

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First Quarter of 2006 U.S. Motorcycle Sales and Statistics

April 26, 2007 - First quarter 2007 motorcycle sales are off from the first quarter of 2006, with street bike sales down 3,259, a drop of 2.6%; off-road bike sales dropped 17.8%; scooter sales down 4.6% while dual-purpose bikes are about stable with a 1% sales decrease.

Total current first quarter 2007 sales for off-road, dual-purpose, street bikes and scooters are 195,092, compared to 209,860 for the first quarter of 2006. This is a drop of 14,768, or 7.0% overall.

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Summary of 2006 U.S. Motorcycle Sales and Statistics

March 28, 2007 - The final numbers for 2006 are in and they show a modest increase in overall motorcycle sales, which totaled 1,022,332 (Including scooter, street, dual sport and off-road types). This compares to 1,009,588 in 2005 for an increase of 1.3%.

Here's the breakdown:

 

The big surprise is the drop in scooter sales, which have been predicted to rise, based on the increased fuel prices in the U.S. The dual sport category is also interesting, with another big increase in 2006. If ATV sales (747,581, a decrease of 4.2% from 2005) are factored in, total sales dropped for the first time in 14 years of consecutive growth (18 brands included).

However, the growth in street bike sales does continue the 14 year trend. Other statistics reported by the Motorcycle Industry Council include an estimate of 8,802,000 motorcycles in use in the U.S. in 2003, the latest year for which figures are available. About 76% of these motorcycles are in the over 749cc category and 16% are 450 to 749cc's.

The largest number of motorcycles are in California, Texas, Florida, Pennsylvania and New York, with 33% of the total motorcycles in use in 2003. You may think that the West Coast has the largest number of motorcycles, with 2,187,100, but the South beats this with 2,645,100 (although this is a somewhat meaningless number due to the arbitrary numbers of states in each region).

In 2004, approximately 5.7 million motorcycles were registered for use on public roads in the U.S.A., which equals about 2.4% of all vehicle registrations. Estimates of market share for 2005, the latest year for which numbers are available, show Honda in the lead with 24% of the market, followed by Harley-Davidson and Buell with 22.6%, Yamaha at 15.9%, Suzuki at 11.8%, Kawasaki at 9.1%, KTM at 1.7%, BMW with 1.2% and "Other" at 13.7%. Why Triumph isn't broken out separately remains a mystery.

In 2005, the motorcycle industry generated an estimated $25.5 billion in consumer sales, services, state taxes and licensing, including $9.8 billion in motorcycle retail sales. Also in 2005, there were 12,013 retail outlets selling motorcycles and related products, with 148,675 employees earning an annual estimated payroll of $4.0 billion.

There's been a dramatic change in the age of motorcycle owners since 1985. For example, owners under 18 years old total only 3.7% of the percent of total ownership in 2003, compared to 14.9% in 1985, while the owners age 40 and over total 53%, compared to 21.3% in 1985.

Motorcycle injuries have been on a steady increase since 1996, from about 55,000 in 1996 to approximately 85,000 in 2005. This comes as MSF trained riders increased from about 125,000 in 1996 to about 325,000 in 2005. Fatalities have also risen dramatically, more than doubling from about 2,100 in 1996 to about 4,550 in 2005.

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2006 BMW Motorcycle Sales

January 13, 2007 - BMW reports that worldwide BMW motorcycle sales for December were up 36.8 percent over the same period the previous year, while annual sales topped 100,000 units. BMW Motorrad USA, also posted increases for December as well as annual sales.

The strong performance was claimed to be due to the introduction of new models as well as the continued performance of existing models. At the head of the list was the top-selling model – the R 1200 RT – which was named “Best Touring Bike” in 2006 for the second year in a row by editors of Motorcyclist Magazine.

BMW’s R 1200 GS model – named “Best Adventure Bike” last year by Motorcyclist – accounted for the marque’s second highest volume. The F 650 GS was BMW’s third best-selling bike.

BMW Motorrad USA will introduce several new motorcycles for 2007 – the G 650 series, the F 800 series, and the K 1200 R Sport models – all of which are expected to contribute to another strong year.

100,000 motorcycles were produced and sold for the first time, which now means that over 2 million motorcycles have been sold in the company's entire history. Exactly 100,064 BMW motorcycles were sold worldwide - the highest number ever supplied by the company to customers in a single year. Compared to the previous year (97,474 units) this means a sales increase of 2.7 per cent.

And the company can boast yet another proud statistic for 2006: in December the number of all BMW motorcycles produced since 1923 reached the two million mark. By the end of the year a total of 2,061,977 motorcycles had been produced, 1,616,016 having come off the production lines of the motorcycle plant in Berlin-Spandau since 1969.

In keeping with the company’s roots, the 100,000th motorcycle was a flat twin “Boxer”, an unfaired R 1200 R in Night Black non-metallic fitted with Integral ABS.

The foundation for increased production was laid by investments made in past years. Some 117 million euros was spent on developing motorcycle production in the Berlin plant between 2001 and 2003. Today it is regarded as one of the most state-of-the-art motorcycle plants in the world.

The markets in Western Europe accounted for the lion’s share of the impressive sales results. In Germany, a total of 23,617 units had been supplied as of December, making BMW Motorrad the market leader in its home territory.

The second strongest market for the company was Italy with 13,651 units, followed by the US (12,825 units) and Spain (10,002 units).

The R 1200 GS – along with its sibling model Adventure - achieved phenomenal sales success with 31,138 units. Not only is it the market leader by far among the large-volume enduro motorcycles, it is probably one of the best-selling motorcycle models worldwide in the category over 500 cc.

Ranking in second place in terms of popularity of BMW motorcycles is the touring bike R1200 RT with 13,384 units. The single-cylinder model F 650 GS and the model variation Dakar was sold 12,511 times.

Within a decade, BMW Motorrad has become the biggest and most successful manufacturer of large-volume motorcycles in Europe. But for Dr. Herbert Diess, the managing director of BMW Motorrad, volume increase is not the ultimate objective: “Our company strategy is long-term and oriented towards the permanent profitability of all products; it is not simply geared towards volume. Rankings in registration statistics are not the main focus of our interest. We invest carefully in innovations and technologies for new models, consolidating and extending our segments and market positions. This secures a strong position within the market for us and our dealers.”

Looking ahead to 2007, BMW Motorrad starts out with five new models. The new single-cylinder series with the models G 650 Xchallenge, Xcountry and Xmoto, and the K 1200 R Sport will all be available from dealerships in Germany from March 10, 2007 and the HP2 Megamoto follows in late spring.

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2006 Motorcycle Sales

November 2, 2006 - Motorcycle sales in New Zealand are reported to have been on the rise, up about 25% from 2005 to 2006, from 9,000 bikes in 2005 to 11,000 so far in 2006. The cause is thought to be high fuel prices.

October 21, 2006 - It's interesting to note that on/off road motorcycle sales continue to rise, with a 23% year-to-date increase in the first three quarters of 2006 as compared to 2005. This may be due to sales of motorcycles like the BMW R1200GS, Triumph Tiger and others, although the definition of "dual use" is not clear to us.

Meanwhile, street bike sales are running 6.6% ahead of last year, while scooter sales are, surprisingly, down 1.5% for the year.

Can’t you just picture it – maps laid out, clothes folded ready to be loaded into waiting bike luggage, bike all tuned up, the smell of heavy leather gear [or freshly laundered Gore-Tex] floating about the room. The last thing on the motorcyclist’s mind as she/he goes through the Pre-Trip Checklist is The BLS1. Unfortunately, failure to consider The BLS can end up costing the motorcyclist time, money and the safety and peace of mind of his family should something go awry on the trip! The BLS includes: insurance issues, estate planning and traffic/motorcycling laws. We’ll take a look at all three, starting with the always exciting topic of INSURANCE today!

INSURANCE ISSUES for the MOTORCYCLIST

Insurance? You don’t need to worry about no stinkin’ insurance, right? You’re driving a MOTORCYCLE … what can POSSIBLY happen? [For this part of the article, let’s assume you are staying inside the United States – things REALLY get crazy in the insurance world when you cross sovereign borders!]

Health Insurance

First, and foremost, before you leave the house make sure you are carrying all of your health insurance information. Keep it close at hand - better yet, pack your insurance card, or a copy, in a small [2”x3”] baggie with your ID, emergency contact information and list of medical allergies stored visibly on your person – or in your helmet! If you are hurt on the side of the road, unable to communicate and need emergency care or serious medical intervention you do NOT want healthcare professionals wondering who you are, who to contact and whether or not you’ve got health insurance! “Road ID” is a company that makes an excellent wristband product holding a plate with your emergency information or whatever you tell them to type on the plate! [www.roadid.com].

WARNING: Some health insurers are experimenting with limiting the benefits they provide if an insured is injured while riding a motorcycle or engaging in certain other “hazardous sports.” As you might expect, groups, such as the American Motorcyclist Association, are up in arms and preparing to do battle. However, under health insurance policies covering motorcyclists right now a motorcyclist can hit by a DRUNK driver and find out they have NO health insurance coverage! A bill is currently pending in Congress to stop this practice. Support H.R. 1076 in the House and S.B. 616 in the Senate! Follow these bills on the MRF [mrf.org] or AMA [ama-cycle.org] websites.

Disability Insurance

In 2005, there were 179 riders [77 intoxicated riders] killed on Ohio’s roadways – a 35% increase. However, more telling, there were some 3,400 riders injured in a total of 4,500 motorcycle crashes. Statistically, you are MUCH more likely to become disabled, short term or long term, from a crash than you are to be killed. I’m certainly not here to sell you insurance, but if you earn a decent wage, you should protect it. Take advantage of disability policies available through work or, perhaps, a professional group that you belong to. Make sure there is no “hazardous sports” clause, however!

Motorcycle Insurance

Guess what – we are POPULAR folks – at least with insurance companies. More and more major carriers are fine tuning their motorcycle insurance offerings to be competitive. Why? Because they are realizing that, contrary to some folklore, motorcycle owners and operators are not a bunch of scofflaw outlaws – they tend to be dedicated vehicle owners, taking pride in their equipment and enjoying their rides. Also, and more pertinent to insurers, aging baby boomers, present company included, have sparked a motorcycle boom – buying bigger, hotter, faster, cooler and more expensive bikes than ever before. These machines - whether they do 175 out of the crate or cost $35,000 in custom design and components – and their riders all have one thing in common – they need insurance!

Motorcycle Insurance – Medical Payments Coverage

If you are injured in a crash on your motorcycle and can’t pay your medical bills, you may find some financial assistance buried within your motorcycle insurance policy!

Most motor vehicle insurance policies provide, or offer, “medical payments” coverage. This coverage pays YOUR medical bills if you are in a crash with another car. Historically, if you were hit by a car while riding your bike your “medical payments” coverage could be used to pay some of your medical bills even though the coverage is found in your automobile policy.

Check your policy and declarations page to make sure you have “medical payments” [ or “med pay”] coverage. If you were shopping for the lowest PRICE on insurance, some agents will remove some typical coverages in order to cut down the amount of the bill – “med pay” included. You will want this coverage – particularly if you no medical insurance, or a very poor policy.

Motorcycle Insurance – Uninsured/Underinsured Motorist Coverage

One scenario many motorcycle riders face is the cowardly motorist who runs you off the road, throws something at you or otherwise causes a crash in which the motorcyclist loses control or is injured, and then flees the scene. These “phantom motorist” cases are tough, but the law of many states, including Ohio, provides for a recovery under the “uninsured/underinsured motorist” [“UM/UIM”] provisions of your auto insurance policy.

I advise my clients to buy as much “UM/UIM” coverage as they can afford because, like “med pay” coverage, UM/UIM coverage pays YOU when you need it the most! So when does UM/UIM coverage come into play?

The “UM” or “uninsured motorist” part of the equation is pretty obvious. If you are in a crash caused by motorist who simply has no insurance, your “UM” coverage should pay your injury claim just as if it was the motorist’s coverage. The motorist may be driving intentionally without insurance. In some cases, however, the motorist may THINK he has insurance but failed to pay the premium and the policy lapsed. If the motorist improperly, or fraudulently, filled out his application when he applied for insurance, the carrier might yank the coverage once it figures this out – usually following a crash when a claim is made. This formerly insured motorist now becomes “uninsured.” You can use your “UM” coverage to pay your wage loss, medical bills and pain and suffering just as if the other guy did have coverage.

The application of “underinsured motorist” coverage may not be so obvious. Let’s say the motorist who runs you over actually has pretty good coverage - $100,000.00 policy limits. However, because of the severity of your injuries, wage loss, medical bills, pain, permanent injuries and the like, your claim is worth a lot more than that – say, $500,000.00. The motorist, despite his excellent coverage, is considered to be “underinsured motorist” under your policy and your policy’s “UIM” coverage may be used to pay your claim.

Crashes in which UM/UIM coverage becomes involved have generated an incredible amount of litigation. The insurers are constantly pushing to limit the circumstances where such coverages can be used, while lawyers representing injured riders and motorists are constantly pushing to maximize the recovery their clients can obtain. You would be wise to retain counsel in ANY situation in which UM/UIM coverage might come into play.

No Fault States

Kentucky is a “no fault” state – Ohio is not. The difference in the motorcycle insurance world is night and day. In essence, in a “no fault” state, YOUR insurance pays the first part of YOUR medical bills regardless of who was at fault. In Kentucky, it’s the first $10,000.00! The purpose of “no fault” is to reduce the amount of lawsuits – the thought being that if an injured victim is getting his bills paid, he’ll be less likely to sue.

However, while every AUTO policy MUST have “no fault” in Kentucky, policies covering MOTORCYCLES do not! If you purchase insurance in Kentucky and do not have “no fault” on your motorcycle policy, you are essentially carrying a $10,000.00 deductible! This is a complex legal topic and, if you buy insurance in Kentucky, you should discuss it with your agent, or your lawyer, to make sure you understand what you are buying and the limitations of your policy.

Are you carrying an Umbrella?

Do you carry any type of excess or umbrella insurance? These types of policies are designed to go over the top of all other policies and only come into play in extraordinary occurrences in which all other available insurance is used up and you still have losses. An umbrella policy is usually written with large policy limits - $500,000.00 or more. You are required to carry certain minimum policy limits for underlying coverage. I advise ALL of my motorcycling clients to consider an umbrella policy, particularly if you own a home and have significant assets. They are typically very inexpensive and, in that once in a lifetime situation, can save your financial life! Consult your insurance professional for details.

Real Life Insurance Example

So here’s a real-life example of insurance coverage in action. My client, a physician who rides all the time, suffered a dangerous neck fracture when a motorist backed out of a driveway directly in front of him. He needed surgery to fuse his neck at two levels. The motorist, unfortunately, carried Ohio’s pitifully low state minimum auto coverage - $12,500.00. The client’s medical bills were in excess of $80,000.00. His wage loss was in excess of $40,000.00 and growing.

Fortunately, the rider purchased excellent auto coverage which had $300,000.00 “underinsured motorist” policy limits and $10,000.00 in “medical payments” coverage. Even though he also carried excellent medical insurance, the “co-pays” for his surgery and treatment were extensive. He used the $10,000 from his medical payments coverage just to cover these “co-pays.” You can see how a bad wreck can you put in a HUGE financial hole very quickly!

In addition, my client utilized a disability benefit through his office that kept him afloat financially while he was off work completely for more than two months. Finally, he had wisely purchased an umbrella policy with $1.0 million limits. Since his claim has a value that exceeds his $300,000.00 “UM/UIM” limits, the umbrella policy will come into play to pay his claim. While he, like most of us, hoped he would never need it, the “once-in-a-lifetime event” happened to him! Fortunately, he paid attention to The BLS before he took a ride!

So there you go, The BLS about Motorcycles & Insurance in a [rather large] nutshell! Next month, we tackle another exciting topic – Estate Planning for the Motorcyclist!

Ahhh, the things we do for science. If there are typos in this article it is only because my fingertips are still not quite working properly. I just walked in the door of the office – it’s 9:05am on December 9, 2006. According to the weather icon on my computer, it’s currently 9o at the airport and I don’t even want to calculate the 85…er… 65 mph wind chill!

I ride a 2001 BMW F650gs. It’s not a big, fancy bike – more like a dirt bike on steroids. I try to commute virtually year round, but took the day off yesterday when cars were sliding into ditches! Today it is cold, clear & dry – I thought I would ride to work, test some gear, tell you about it, and then take a look at an interesting Ohio Supreme Court case involving a motorcycle, a dying tree and the obligation of tree owners [and county commissioners] to know their trees!

PART I – Cold Weather Riding
Some people tell me I’m crazy to ride the bike in the winter. Yet, these same folks will pay thousands of dollars to fly to Utah and ski all day long in the mountains! As long as you are prepared for the risks of riding – be it summer, winter, clear, dry, rainy or snowy – you can ride anytime!

Now the huge difference between skiing and riding is clearly the level of exertion. Cross country skiers generate tremendous heat in their exhausting treks. Motorcycle riders sitting on their respective keesters, do not.

Warm clothing for riding is a must, and today’s fabrics and technology make it easier [albeit pricier] to stay warmer longer on the bike – even if you don’t invest heavily in “electric” clothing. Bruno Valeri writes on Cold Weather riding from Montreal. I like his analogy that the body’s temperature is “…very similar to a bike’s electrical system [i.e., charge vs. discharge]” without an alternator. The body starts out, bundled up, at 98.6o or more. Exposure to the cold and wind, with no new heat source, will lead to your experiencing the cold – the only variable is the length of time it will take. Valeri writes “Just like the battery voltage continuously decreasing, our body will get progressively colder.” This is what happened to my fingers this morning!

When I rode to ride this morning I included the following:

• Poly pro/wool socks
• Under Armour© running tights
• Tight Nike© Pro T shirt
• Dressy sweater & dress pants
• Heavy wool cardigan
• Tight-fitting Mountain Hardwear© windproof jacket
• Aerostich Darien Light Goretex ©motorcycle jacket
• Oxtar Goretex © touring boots
• Bikers brand Goretex Windstopper glove liners
• First Gear © brand winter gloves with 40g Thinsulate
• Aerostich electric Grip Warmers on the bike
• Columbia© brand fleece gator
• T408 brand Men’s snowboarding pants

You should have absolutely NO skin exposed. This is critical to cold weather riding. Your comfort and safety demand that you are alert and able to see, move and think quickly. If you are cold, tense and worried about hypothermia and frost bite, then you are less likely to appreciate the dangers ahead and have the ability to take the appropriate action. The Goretex elements of my gear help to insure that the wind stays OUT and the heat stays IN. The “tight” fitting tights and first layer are also great for keeping the heat close by. I find most office temperatures permit the comfortable wearing of these items.

One concession I make to the weather is to ride with the face shield down on the helmet. With the small windshield on my bike, the frigid air hitting my face causes concern. Other than my fingertips, however, I arrived this morning with no complaints. My gear retained my body heat excellently during the ride with the exception of my fingertips. I bought some 99¢ glove warmers which I may try tomorrow. If worse comes to worse, or I want to ride longer distances, I am probably going to have to bite the bullet and invest in some electric clothing. I’m a shopper, always looking for bargains. Other than paying the big bucks for the Aerostich jacket, I obtained just about everything else on sale at TJ Maxx or other discount stores.

Today, though, I store the gear in the corner of my office, swap out the boots for a pair of slip-ons I keep handy, and I’m ready for another day of bike lawyering! [As I wrote this, I realized that I forgot to pull the plug on the grip-warmers, so next month’s article was almost entitled “How to start a bike with a dead battery…”]

Part II – The Bike, The Tree and the Landower
On July 10, 1982, Melvin and Mary Heckert were riding their motorcycle in rural Stark County, Ohio. As they rode along, a dead tree limb suddenly fell off an overhanging tree and into their path. They hit the limb and a nasty accident ensued, causing severe personal injuries to both, as well as significant property damage to their bike.

The Heckerts sued the owner of the tree and the county. The Heckerts claimed that the landowner was negligent for permitting the overhanging limb to fall onto the roadway. As to the county, the Heckerts argued that the commissioners breached their statutory and common law duty to maintain the highway in a proper condition for travel. Both the landowner and the county moved for “summary judgment,” meaning that they asked to court to toss the case out before trial since, even assuming the facts to be true, there was still no liability. The Heckerts submitted expert witness affidavits and fought the motion, but the trial court granted summary judgment and dismissed the case. The Heckerts appealed all the way to the Ohio Supreme Court and the case reached the Supreme Court in 1984. The decision provides an interesting historical glimpse into the battles that waged between the liberal and conservative elements on the court in the 1980’s.

The Supreme Court in 1984 was an interesting group. It was a politically charged era and, even though judges are not supposed to be “Democrat” or “Republican,” those “in the know” knew which judges were more likely to favor the injured folks and which were more likely to rule against them. The seven member “Celebreeze Court,” as it was known, took pride in its decisions in the 1980’s which took Ohio law out of the dark ages and expanded the rights of those injured by the negligence of others. Many of these were “4-3” decisions, with Justice Holmes writing passionately conservative dissents. Unfortunately for the Heckerts, Justice Holmes apparently convinced three of his bretheren to rule with him in this case.

The Heckerts provided the affidavit of a tree expert to support their case. This expert stated that the tree in question had “large and rotted limbs” which extended over the roadway and that several limbs had already fallen prior to the crash. In his opinion, “***this tree has been decaying and has been in a stressful state for many years prior to July 10, 2082***”

Justice Holmes noted that the horticulturalist based his opinion on an examination of the INTERIOR of the tree, not the exterior. As such, he reasoned, there was no reason for the landowner to have realized the danger presented by the dead branches and no liability could attach. The three dissenting judges argue that the expert “***clearly states that the deterioration of the tree was visible and apparent***” long before the Heckerts’ crash. This sort of picking apart of the facts is very characteristic of the arguments between the judges on the “Celebreeze” court.

With regard to the County, Ohio’s statutory law provides that "* * * The board shall be liable, in its official capacity, for damages received by reason of its negligence or carelessness in not keeping any such road * * * in proper repair * * *." The Supreme Court noted two principles in the case law which has developed under this statute:

1. Liabilty only attaches in matters concerning the deterioration or disassembly of county roads and bridges and

2. Liability will NOT be imposed when the obstructions or interferences are unrelated to the conditions of the roadway.

Thus, liability has been imposed on the county for bridge collapses, ruts in the berm of the roadway, holes in the road or berm and a trench in the roadway. No liability has been found relative to a rock ledge on which a bridge abutment rests or to injuries sustained when a motorist hit a parked truck. There is also no county liability for tree limbs obscuring a stop sign, a bridge that is narrower than the approaching roadway, or snow removal.

Here, Justice Holmes wrote that the county is not liable when a branch from a tree falls onto the roadway. Again, the dissenters argue that the county has the same obligation to scour its roads for evidence of dangerous conditions. Here, they argue, the evidence was patent and obvious – the overhanging tree was a hazard. Again, the dissenters were in the minority and the court held, in a 4-3 vote, that the county wins.

This case does set an interesting rule. A landowner CAN be liable to a motorcycle rider if he permits hazards which are apparent and ignored. The disagreement between the judges, more political than factual, provides a window into the bigger rifts between the justices favoring an expansion of remedies to injured victims and those favoring reigning in such liability.

GOOD LUCK & GOOD RIDING!

In 1991, one of the oddest products liability cases ever written by an Ohio Court of Appeals judge was decided. The case, Sedgwick v. Kawasaki Cycleworks, Inc. (1991), 71 Ohio App.3d 117, caused quite a stir when it came out and is still rather unique in Ohio law.

The injured party, Kim Sedgwick, bought a motorcycle from the defendant, Kawasaki Cycleworks, in 1981. The bike, a Honda 750, was modified by the seller to “…give the product greater sales appeal…” according to the court. These included a wind fairing, lower handlebars, foot pegs, and other matters.

Plaintiff obtained the bike on May 16, 1981. The next day, plaintiff was out riding in downtown Columbus [who wouldn’t be??]. He was riding with a friend, who was watching how he handled the bike. The friend drove ahead from a stoplight, then heard a crash and discovered that the plaintiff had crashed, colliding with the curb and guardrail along Fourth Street. Kim Sedgwick suffered very serious injuries – multiple fractures including hip, back, ribs, ankle, knee and pelvis.

Plaintiff sued the dealer alleging that the crash was caused by interference between the newly placed handlebars and wind fairing and the mirrors on the bike.

Here’s where it gets a wee bit weird.

Plaintiff had no recall of the crash. However, according to the appellate court, he underwent two “sodium amytal sessions” to try to help “…facilitate recall of his memory.” The sessions were conducted by a psychiatrist. The second session was particularly fruitful as plaintiff was “…able to recall a number of events which he had previously had not been able to remember…”

Specifically, Kim Sedgwick recalled looking over his left shoulder to look for a car prior to the crash. He stated that the car overtook him and cut him off, causing him to make a sudden swerve to avoid impact. Plaintiff stated his hands became trapped between the handlebars and fairing, causing him to lose control of the bike and head towards the curb.

The defendant filed motions with the court to keep this evidence out. The trial court ruled the testimony was sufficiently reliable as to be admissible.

Plaintiff testified as to his pre- and post-sodium amytal memories. The psychiatrist also testified as an expert witness, explaining the use of the drug, its acceptance in psychiatry and the procedures for using it, along with his specific testimony about the plaintiff’s enhanced recollection.

Plaintiff and his friend testified they both noticed the fairing interference at the dealer. Plaintiff’s expert testified the bike was defective and that the defect caused the crash. Defendant’s expert testified the crash could not have occurred in the manner described by plaintiff.

The jury found for the plaintiff – in the sum of $783,000.00 in compensatory damages.

Defendant raised eight issues on appeal but the guts of the appeal centered on the admission of “drug induced” testimony.

A 1988 Ohio Supreme Court ruling set forth guidelines for the admissibility of testimony by a witness who had undergone hypnosis. The trial court applied those concepts to the sodium amytal sessions. The ultimate standard set by the Court is incredibly vague – “Testimony … by a witness who memory had been refreshed by hypnosis… is admissible only if the trial court determines that, under the totality of the circumstances, the proposed testimony is sufficiently reliable to merit admission…” The Court then set out a five-step guideline which the trial court “may” consider including proof that the sessions were conducted by a psychiatrist who is independent from the case and that the sessions were recorded, preferably on video tape and the information given to the doctor should also be recorded. Finally, only the doctor and subject should be present.

The court of appeals then reviewed the proof here, which was that the psychiatrist was independent and was provided rather limited information about the case. The doctor met with the plaintiff prior to the sessions to determine the scope of his memory and recorded that information in his notes. The doctor recorded both sessions on audiotape.

The court of appeals found that, given the proof presented, the plaintiff had met the burden of proving the reliability of his sodium amytal-enhanced memory.

This was admitted despite the fact that plaintiff’s attorney was IN THE ROOM during the sessions because “… of the potential difficulty of understanding all of the retrieved words while plaintiff was under the effects of the barbiturate…” However, the court found no evidence that counsel’s presence in the room influenced the outcome or plaintiff’s testimony.

Ultimately, the court “affirmed” the trial court’s actions in the case and the plaintiff was allowed to keep his verdict against Kawasaki Cycleworks.

Ohio’s products liability law has undergone some dramatic changes over the years. Many of the changes were spurred by the political realities of Ohio’s legal system which I discussed last month – the “plaintiff’s”-oriented courts of the 1980’s expanded liability and the conservative legislature adopted laws to restrict recoveries. Today, recent changes have again further restricted your ability to bring claims if your bike falls apart.

In ANY crash where a product failure is suspected, it is of CRITICAL importance that everything be preserved in pristine condition. Do not inspect it, twist it, break it, take it apart, have anyone ELSE look at it or do ANYTHING to change anything about the bike or the part that failed. Do NOT send anything away to the manufacturer, the government or anyone else!

You need to find a lawyer to help you as quickly as possible. A lawyer who regularly handles products liability claims will have access to engineers, experts, investigators and others to properly put the case together.
Please note, you can NOT handle this type of case on your own. These are complex, expensive and time consuming cases requiring experienced counsel.

GOOD LUCK & GOOD RIDING

On September 13, 2004, motorcyclist Bruce Willis [yes, his real name] lost his appeal in the case of Willis v. Commodity Specialists, Inc. In my mind, the Third Appellate District made the wrong decision and issued an opinion which permits cities to discriminate against motorcycle operators in a dangerous manner.

Willis was hurt on U.S. Rt. 33 in Marysville, Ohio on August 30, 2001. As he road down Rt. 33 he came to a stretch of the highway where grain had accidentally been spilled by the driver of a Commodity Specialists, Inc. truck. The spilled grain was extensive, covered the roadway and was spread across both lanes for 20-30 feet.

When Willis approached the scene, police officers were directing traffic through the grain. Traffic had slowed to 35-45 mph and Willis could see the city was unloading equipment to clean up the spill. Willis followed the police officer’s directions and signals and rode through the spilled grain. His bike fishtailed and lost control on the slippery roadway. He crashed and suffered significant injuries. Willis then sued Commodity Specialists, Inc., its driver as well as the City of Marysville. He was able to reach a settlement with all parties except the City of Marysville. However, the trial court dismissed his claims against the city and he appealed.

Willis argued that the city of Marysville was liable for failing to keep its roadway “free from nuisance” and that the city was not “immune” from liability under these facts. Willis also argued that the actions of the Marysville police officers of allowing traffic to proceed through the nuisance did not cloak the city of Marysville with immunity.

The City claimed it had “immunity.” “Immunity,” as everybody knows from watching Survivor on TV, is a concept that means even though you should otherwise lose, you are “immune” from losing, or from liability in this case, due to some special rules. In Ohio, the special rules protect governments from liability in all but limited circumstances.

Marysville argued it was protected under an Ohio law which provides “…a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.…”

Willis argued the City of Marysville lost its immunity under another statute which provides: “…political subdivisions are liable for injury, death, or loss to persons or property caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivision open, in repair, and free from nuisance ….”

The court took a very close look at the facts that were developed in case. It noted that a police officer arrived on the scene shortly after the spill and immediately contacted the street and fire departments for clean up assistance. However, the officer elected to direct traffic through the spill rather than shut down a very busy stretch of roadway.

Mr. Willis happened on the scene after the officer chose to direct traffic through the spill. He saw the grain covering the roadway. Mr. Willis also admitted that he saw the cleaning equipment on the scene and he understood that the clean up would soon be underway. However, he proceeded to drive through the substance at the officer’s direction, where he fishtailed and lost control of the bike.

Mr. Willis argued that the spill was such a “nuisance” that traffic should have been routed around the spill. If this was not possible, he argued the road should have been shut down and traffic stopped until the clean up was complete.

The court of appeals noted that Ohio courts have ruled on many different types of claims of “nuisance.” For example, hanging tree limbs or corn growing in the road’s right of way were both found to be nuisances and a city’s failure to trim the tree/corn was held to be negligence such that the city was liable for injuries caused thereby. A malfunctioning traffic signal could also be a nuisance, as could a city’s failure to maintain a road sign already in place. Willis argued that his case should be looked at in the same light as these examples.

The court of appeals refused to bite, however. The court said the grain was not a “permanent” impediment to the movement of traffic and that “not all obstructions or impediments to a municipality's highways are nuisances.” The court noted that the City of Marysville had played no role in causing the hazard and had acted promptly in getting a crew involved in cleaning it up as soon as it became aware of the spill. The court also noted that Mr. Willis described the traffic as “heavy” and that traffic would have had to stop since there was no way around the spill. According to the court, the police officer’s decision to allow traffic to proceed through the spill at 30-35 mph was not malicious or made in bad faith. The court held that no liability could attach to the city or the officer.

Oddly, the court did not cite or refer to other Ohio Supreme Court cases that could have led to a different decision. In Dickerhoof v. Canton, the nuisance alleged was a chuckhole or pothole on the shoulder of the highway. A motorcyclist was killed when he swerved to miss an object in the highway and hit the chuckhole on the berm or shoulder. The court held that this pothole could be a “nuisance” leading to liability.

The problem I have with the court appeals decision in Willis is that court appears to treat dangers to TWO wheeled vehicles differently than dangers to FOUR wheeled vehicles. The law does not so discriminate. The city must make sure roads are safe for ALL vehicles. The court of appeals failed to recognize the obvious danger the grain spill presented to two wheeled vehicles and focused on the city’s quick response. To me, “quick” does not mean “correct” and the court could have easily held that the spill presented such an inherent danger of crashing to two wheeled vehicles that the spill should have been cleared before motorcycle operators were waved along.

Mr. Willis’s 2001 spill on the spilled grain led to three years of litigation against the City. Since the court indicated he settled his claims with the grain company and the negligent driver, I can only hope that he recovered a reasonable settlement from them and took a chance on the case against the city. The downside of Willis’s gamble against the city is that the lousy court of appeals decision leaves bad law in place in the Third Appellate District of Ohio which seems to permit cities to discriminate against the operators of two wheeled vehicles.

GOOD LUCK & GOOD RIDING

“You don’t know me, but…”

Didn’t those old American Express ads used to begin that way? The same applies here, I think. You don’t know me but… I’ve been asked by the editors to contribute a regular column on legal issues of interest to motorcycle operators. My background is in representing people injured, or the families of people killed, as the result of negligent motorists, errant dogs or faulty products. I’ve handled over 100 two-wheeled cases, including bicycle and motorcycle operators. I’ve also worked as an advocate with non-profit groups such as the Ohio Bike Federation and “Rails to Trails” promoting the education of both “the masses” and riders about rights, responsibilities and liability.

Every two-wheeled rider in Ohio should be aware of Ohio’s “Senate Bill 158.” Most legislation, unless it’s a helmet law, barely gets noticed by riders – but this one should get your attention because by the time you need it, it will be too late!

SB 158 is a bill pending right now which was jointly sponsored by a coalition of bicycle and motorcycle groups, known as the Ohio Right-of-Way Working Group. The American Motorcycle Association is part of this group, as well as the Central Ohio Bicycle Advocacy Coalition (COBAC), the Columbus Coalition of Motorcycle Riders, Concerned Motorcycle Riders of Ohio (CMRO), Confederation of Clubs of Ohio, Ohio Bicycle Federation, and Train MRO, Inc. Just what is so damn important that so many diverse groups are working together on getting this legislation passed into law?

SB 158 provides increased protection to two-wheeled riders from motorists by stiffening the penalties of seemingly “minor” traffic violations that lead to catastrophic results. For example, causing a “rear-ender” [or, in legalese, violating the “assured clear distance ahead” rule] is a minor misdemeanor, with minor penalties. We all know a “rear-ender” can lead to serious injuries or death to those not encased in a 2500 pound metal box and riding on four wheels! SB 158 kicks up the penalty based on the injury. If the incident resulted in “serious physical harm to another” the violation becomes a misdemeanor. The penalties are increased to include up to 60 days in jail, a $500 fine, license suspension and the imposition of two, three or even four points on the violator’s license! If a death is caused, the jail term under SB 158 can be 180 days, the fine $1000.00, and the points assessed can be as many as six.

The other cool thing about SB 158 is that the fines imposed are to be deposited in a newly created fund – the “Highway Safety Education Fund.” These monies are to be spent only for “…educational activities related to highway safety.”

So, the first lesson of Bike Law 101 is this: Find your state representatives – House & Senate. Call, write or email them and tell them you ride and you’re part of the hundreds of thousands of educated riders in Ohio. Tell them you’re concerned that motorists who kill or maim are riders are getting off too easy. Tell them that that passage of SB 158 is critical to you and your fellow riders.

GOOD LUCK & GOOD RIDING!

On April 19, 2001, the 10th Appellate District of Ohio [Franklin County] decided the case of Vinar v. Bexley. This interesting case is illustrative of some of the issues operators of two-wheeled vehicles face in the world of personal injury litigation. Even though the case involved a bicycle accident, the court’s decision applies with equal force to motorcycle riders!

Marvin Vinar was riding his bicycle on July 3, 1997. The roadway on which he was riding was maintained by the City of Bexley and was located on the grounds of the Jeffrey Mansion, a park in Bexley. Mr. Vinar apparently hit a “speed bump” on the roadway and crashed, suffering injury.

Mr. Vinar filed a lawsuit against the City of Bexley, alleging that:

• The City had placed the “speed bumps” on the roadway
• The speed bumps were dangerous to vehicle operators in that:
• They were not marked
• They were not rounded
• They were too high for safe use by anticipated users of the road.
• He also argued the speed bumps constituted a “nuisance” and he was injured as a direct result of the city’s maintaining a “nuisance.”

The City filed a “motion for summary judgment” arguing, in essence, that even if the court believed all of the facts alleged by Mr. Vinar, the City was still entitled to have the case dismissed based simply on the application of the law to those facts. The City initially argued that it was “immune” from liability based on “sovereign immunity” - an old legal doctrine still very much alive today which is based on the somewhat antiquated notion that “...the King can do no wrong...” When the City’s first motion was overruled by the trial court, the City changed its legal strategy and argued that it was immune from liability based on Ohio’s “Recreational User Statute,” Ohio Revised Code Section 1533.81. The trial court agreed with the City on this theory and dismissed the case. The bicycle operator appealed.

A “Recreational User Statute” of some sort is in effect in most, if not all, states. While the language varies, the main idea is that if one who owns land and opens up the land for use by so-called “recreational users” - bicycle operators, off road dirt bike riders, skateboarders, climbers, runners, dog walkers, etc - the landowner cannot be held liable for injuries from defects in the property suffered by such recreational users. These statutes, while focusing on private landowners, have also been held to apply to protect states and municipalities as well.

In Ohio, a landowner “owes no duty to a recreational user to keep the premises safe for entry or use” so long as no fee is charged to use the land. The issue in Vinar was the “character of the property upon which Plaintiff was injured.”

The court of appeals found Mr. Vinar’s argument that a “roadway” ran through the property to be determinative. A “roadway” is a public thoroughfare with no restriction of use. “As such, the roadway presumably is available to motorists (and bicyclists) for travel not related to recreational use,” according to the court. Where a municipality allows the motoring public to use the streets in a city park for travel not associated with “recreational activities” the court held that the immunity granted under recreational user statutes is inapplicable.

The court of appeals REVERSED the judgment previously entered for the City and sent the case back to the trial court for trial. Thus, the bicycle operator won the appeal.

Please note that the court expressed no opinion as to the validity of the arguments relative to the speed bumps. All the court of appeals did was to allow the Mr. Vinar the opportunity to move the case toward trial. A jury could still find that the speed bumps were not a “nuisance” or that the accident was not caused by the speed bumps but by his own negligence. However, I do commend Mr. Vinar’s attorney for coming up with a rather creative argument to keep his claim alive!

Motorcyclists face similar issues. In an earlier article, I told you about the motorcyclist who was severely injured when he rode over grain that had been spilled on the roadway. In that case, however, the court held that because the motorcycle operator was aware of the hazard and of the city’s efforts at cleaning it up, there was NO liability, even though the motorcyclist was directed by a police officer to ride through the grain! To ME, the police officer’s “OK” is an implicit contract with the public that the roadway is safe for ALL traffic, not just four wheeled traffic. The court of appeals in Vinar reached the opposite conclusion, finding that Mr. Vinar was at least entitled to his day in court to have a jury determine whether the speed bumps were dangerous!

GOOD LUCK & GOOD RIDING

"Conspicuity" is the level or quality of being "conspicuous." This term has become a hot buzzword in accident reconstruction and accident analysis. The "whack me on the head" theory here is that people riding motorcycles who make themselves or their machines more "conspicuous" will be less likely to become involved in accidents. Does wearing a black helmet versus a white one make a difference? Are black jacketed riders more likely to become involved in crashes than those wearing Day-Glo Yellow vests?

Bernard S. Abrams, a Columbus eye doctor and good friend, was a leader in the world of "conspicuity." Prior to his recent death, Bernie testified frequently as an expert witness in many cases where a motorist claimed "I didn't see." the motorcyclist, bicyclist or other patently visible object. He believed that 90% of motor vehicle accidents could be avoided by improving the visual aspects of vehicles, signals, clothing and lighting and spent his life trying to prove this in court.

I don't know if Bernie's theory can be statistically supported, but in 2004 a group of epidemiologists and medical professors published an article in the British Medical Journal entitled "Motorcycle rider conspicuity and crash related injury: case-control study." While there are several studies on the use of headlights in the daytime due to an ongoing political battle over requiring lights, there were very few studies comparing "conspicuity" and the risk of crash: four, to be exact, all over 20 years old. Hurt [he of the infamous "Hurt Study" discussed in last month's article] did find that wearing an highly visible "upper torso" garment was associated with a lower level of crashes.

The BMJ article [which can be read at www.bmj.bmjjournals.com] discusses research conducted in New Zealand over the course of three years. They wanted to find out whether relatively low cost measures - a light, a helmet, some bright colored clothing - could make a difference in accident risk. Without going into an in depth discussion of the research methods, the conclusions they reached were:

1. Drivers wearing some type of reflective or fluorescent clothing had a 37% lower risk of crash related injury than those who were NOT wearing such materials.
2. Helmets - The three main colors of helmet they found were black [~40%], white [~30%] and red [~14%]. Compared to wearing a black helmet, use of wearing a white helmet was associated with a 24% lower risk of injury. Even comparing those who said they were "light coloured" helmets versus those wearing "dark coloured" helmets, there was a 19% lower risk of injury associated with wearing a "light coloured" helmet.
3. Headlights - Daytime headlight use was associated with a 27% lower risk of injury.
4. Clothing & Motorcycle Color - In the BMJ study, some 80% of the 1233 control drivers wore either black, blue or brown on their upper bodies. Interestingly, the study found NO association between the risk of crash related injury and the color of the rider's clothing or the color of the bike. However, because they studied crashes which occurred in the past [and the clothing of those riders] and did NOT place brightly garbed riders into traffic, the authors admitted that this study may not have had the ability to capture relevant data here. The authors indicate strongly that reflective or fluorescent materials offer the rider ".maximum conspicuity advantage in differing ambient light conditions - fluorescence at twilight and reflective material at night."

Having experienced many hours of "road time" on both bicycles and motorcycles, I have my own view of the "I didn't see the bike" response of motorists who crash into oncoming riders. My suspicion is that motorists spend time scanning the road ahead and have a particularly heightened response to large, oncoming "box-like" things that represent an imminent risk of death or serious bodily harm to them. Motorcycle and bicycle operators whose color scheme does not significantly distinguish them from the background of trees, buildings and such can be overlooked by these road scanning motorists. Just like a professional outfielder sometimes has difficulty determining the speed, angle and trajectory of a line drive hit right towards him, a motorist seems to have difficulty determining, or accepting, the speed that a bike travels until a crash is unavoidable! I have always believed that anything a two-wheeled rider can do to stand out in the eyes of a motorist will lessen risk of a crash.

As I write this, I am sitting in a hotel in Springfield, Missouri. I rode the bike from Cincinnati to Santa Fe, New Mexico. In preparing for this trip, my very first extended road trip, the concept of "conspicuity" weighed heavily on me. I knew I was going to be riding mostly freeways on this particular trip, at least until I got to Santa Fe. If I wanted to cover the 1500 miles in the short time allotted, I also knew night driving would be required and, having handled too many "I didn't see the bike" cases, I wanted to be "conspicuous" both in the daytime and at night.

When budgeting for my pre-trip purchases, I hesitated for a couple of days while considering a new jacket. I finally hit "Send" and bit the bullet - I bought the "Darien Light" jacket from Aerostich - in the dorky "Hi Viz Yellow" color! The jacket looks like something a firefighter would wear - the color is that bright and the material that heavy. There is a wide piece of reflective material along the top of the back - running roughly from shoulder to shoulder. Not only do I now feel "conspicuous," I have a sense that motorists actually get out of the way, believing me to be some sort of EMT or other professional! Given my relative speed through Oklahoma and Texas, these concessions by motorists were greatly appreciated!

One other purchase I made from Aerostich was also very helpful [and hundreds of dollars cheaper!]. They sell a piece of highly retro-reflective material that is roughly two inches wide. You can cut it to fit and peel off the back to stick it anywhere - to the bike, clothing, luggage, helmet. I taped two long strips of this material on the back of my saddlebags. The difference was incredible. Instead of simply my small red tail-light, cars approaching me from the back at night now see two brightly luminous strips from a considerable distance away!

A third "conspicuity" purchase I made was to have "MotoLight" auxiliary lighting added. These two halogen lights are mounted on the fork. Thus, they turn with the fork and provide an incredible wide swath of light on dark roads. In addition, the triangular 3 points of light make you more conspicuous, day or night. Once I used them for the first time at night, I couldn't imagine going back to a single headlight.

So, the bottom line is this: Know the risks. Understand that clothing, helmet and lighting choices can affect your risk of injury! Despite ALL of this research, remember that the BIGGEST risk factor is YOU. More than half of the motorcycle deaths on Ohio's roads are one-vehicle crashes, so let's be careful out there!
GOOD LUCK & GOOD RIDING!