Phillips Law Firm Blog

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!

---

US MOTORCYCLE NEWS - SUMMER 2007

---

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.

---

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.

---

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.

---

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.

---

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.

---

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