BIKE LAW 101 - Cold Case & Cold Weather Riding

BIKE LAW 101- Cold Case and Cold Weather Riding by, Steven M. Magas, The Bike Lawyer, BikeLawyer@aol.com

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!

Numbers, Crashes & Accidents

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!

Municipal Liability & Recreational User Laws

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

SB 158 - A Bill Protecting Riders

“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!

A Spill Causes a Spill & a Bad Court Decision

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

Motorcycle Products Liability Claims

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

“Conspicuity” - What is it & why you need to worry about it

“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!