Friday, November 21, 2014

1980s Bicycle Safety Rap Video (Just Because)

It's Friday so how about a kids bicycle safety rap video from the 1980s.  Nothing not to love here. Sugarhill Gang style rapping, school kid archetypes (bully with 'tude, nerd, rich kid, etc.), gaudy clothes, and Styrofoam bike helmets that look like re-purposed dime store beer coolers.  Enjoy, and ri... ri... ri... ride safe!



Tuesday, November 11, 2014

Aurora Bicyclist Remains in Hospital Following Hit And Run Crash

The driver of a red pickup truck struck and seriously injured a 58 year old man riding his bicycle on Thursday in Aurora before fleeing the scene, according to The Beacon-News.  The impact left the truck's front grill in the street, and the bicyclist in critical condition.  The bicyclist, whose name has not been reported, remains in Good Samaritan Hospital in Downers Grove.

The collision occurred at around 5:45 p.m. as the cyclist was riding on Liberty Street, just east of Farnsworth Avenue.  No other details of the crash have been reported.  Police at still looking for the driver.  Anyone with information about the crash or who may have seen a red pick up truck missing its front grill in the area should contact the Aurora Police Department at 630-256-5330.

When searching for a hit and run driver it is critical that a proper investigation be undertaken immediately.  This means talking to area residents and business owners in the days, if not hours, following the crash.  The area around Liberty and Farnsworth is mostly residential.  However, there is a large church, St. Therese of Jesus Catholic Church, at that location.  It is not clear from looking on Google Streetview whether the Church has any security cameras which could have captured the crash, but an inquiry should be made immediately.

Monday, November 3, 2014

Illinois Bicyclist Killed By Center Line Crossing Driver, State Police Blame Victim

A 53 year old male bicyclist on his way to work was killed in Arthur, Illinois by a driver who  crossed the roadway center line, according to The News-Gazette.  The motorist, 41 year old Jessie Lee Wilson of Mattoon, Illinois, was allegedly driving northbound on Moultrie Country Road 1800 East when he crossed the center line to pass a northbound bicyclist and struck the southbound cyclist, Velvon Schrock, 53.  The collision occurred at around 6:50 a.m. on Friday, October 31st.  The driver was cited for improper overtaking.

Mr. Schrock sustained massive head and neck injuries from after being struck by the front of the motor vehicle.  He was a worker at Lambright Distributors in Arthur, and is survived by his wife and three sons.

A press release from the Illinois State Police in Pesotum engages in victim blaming.  Despite charging the driver with improper overtaking of another bicyclist, according to The News-Gazette, the release states that Mr. Schrock "was not riding as close as practical to the right hand edge of the road.  He was also not wearing a bicycle helmet or any contrasting clothing."  It is not clear how the state police determined where Mr. Schrock was riding and why they felt that his position in the roadway was not as close as practical to the right side of the road.  The Illinois Vehicle Code states that a person riding a bicycle must "ride as close as practicable and safe" to the right edge of the roadway. (Emphasis is mine.)  There are numerous exceptions to this requirement that include passing another cyclist, preparing to make a left turn, when necessary to avoid dangerous condition along the right side of the road, and when riding in a substandard width lane.  "A 'substandard width lane' means a lane that is too narrow for a bicycle. . . and a vehicle to travel safely side by side with in the lane."  Illinois bicyclists are not required to ride as close as possible to the right edge of the road.  It is not clear why the state police chose to suggest that Mr. Schrock's position in the roadway some how contributed to this sad event.

Also suspect is the state police's statement that Mr. Schrock was not wearing a helmet or contrasting clothing.  Neither is required under Illinois law.  Also, it is not clear whether use of a helmet would have made a lick of difference.  The collision that killed Mr. Schrock seems to have been head-on along a rural highway.  It seems likely that under the circumstances a helmet would have made little difference.  As for contrasting clothing, the crash occurred during daylight hours and there is no indication that weather played a role.  

The press release from the state police seems to have been more editorial than thoughtful investigation.  The suggestion is that Mr. Schrock did something wrong simply because he was riding his bike to work instead of driving.  This is wrong legally and ethically.  Illinois law grants the same rights to bicyclists to use our roads as to drivers.  It is the role of the state police to enforce the laws of our state, not comment on the transportation choices of its citizens.  

Services will be held for Mr. Schrock tomorrow at 9 a.m. at the HCK West Building, 2008 CR 1800 East.  Arrangments are to be made by the Edwards Funeral Home in Arthur.

Tuesday, October 28, 2014

A Federal Court's Remark About Helmets May Pose A Hazard To Illinois Bicycle Crash Victims

Sometimes a wayward comment by a Court can wreak all manner of havoc.  Recently, I came across such a remark in a federal case from the Northern District of Illinois which I fear could have a negative impact on bicycle crash cases filed in Illinois state court.

The issue which the federal court stepped in pertains to whether a defendant in a personal injury case arising from a bicycle crash may present evidence to a jury that the cyclist was not wearing a helmet. The purpose of such evidence would be to suggest that, where the crash victim sustained a head injury, the failure to wear a helmet contributed to cause the injury and, therefore, is a factor which may reduce the amount of compensation to which the cyclist may receive.  The case, City of Chicago v. M/V Morgan, 248 F.Supp.2d 759 (N.D. Ill. 2003), actually had nothing to do with bicycles or injuries.  The case grew out of an incident in which a barge caused damage to a bridge held in trust by the City of Chicago and which the City was responsible to maintain.  In discussing whether the City was contributorily negligent in its maintenance of the bridge, the federal court noted by way of example that, "Even a thin-skulled bicycle-rider could be contributorily negligent for failure to wear a helmet." M/V Morgan, 248 F.Supp.2d at 776.

Huh?

No, actually, a bicycle-rider, thin-skulled or otherwise, cannot be contributorily negligent for not wearing a helmet in Illinois.  Federal district court decisions do not create authoritative precedent for state courts.  In other words, an Illinois state court, were the majority of personal injury cases arising from bicycle crashes are filed, is not bound by the holding of a federal district court.  However, a state court judge, may find a federal court's ruling persuasive and in the absence of clear state law authority, may choose to follow it.  Federal district courts are after-all supposed to base their holdings on substantive matters (as opposed to mere procedural matters) on the law of the state in which the court sits.  Being the cynic I am, I sense that it is just a matter of time before a defense lawyer in one of our many bicycle crash cases cites to the M/V Morgan decision to persuade a trial judge that a jury should be permitted to consider that an injured bicyclist was not wearing a helmet at the time of their crash.  The effect this could have on the cyclist's ability receive a fair trial could be catastrophic.  Sadly, in my experience, many folks feel that a cyclist who was riding without a helmet may deserve whatever they get.  Hence, evidence of a lack of helmet could preclude a bicyclist's ability to receive fair compensation.

Where on earth did the M/V Morgan court come up with its observation about bicycle helmets? For nearly 30 years, thanks to the cases of Hukill v. DiGregorio, 484 N.E.2d 794 (2nd Dist. 1985) and Clarkson v. Wright, 483 N.E.2d 268 (1985), it has been the law of our state that a failure to wear a helmet cannot be used to prove an injury victim's contributory negligence or to reduce the compensation to which they may be entitled.  A close look at the source of the federal court's comment reveals that it was not based on Illinois law at all.  The Court cites a federal district court case from New Jersey, Nunez v. Schneider Nat'l Carriers, 217 F.Supp.2d 562 (D.N.J. 2002).  The holding in that matter, in which the court was applying New Jersey law, found that evidence that a bicyclist contributed to their head injury for failing to wear a helmet was admissible.  In so doing, the court admitting that it was disagreeing with another federal district court in that state, Cordy v. Sherwin Williams Co., 975 F.Supp. 639 (1997), which issued the opposite holding just five years prior.  The Nunez court also acknowledged that its holding was contrary to that of other jurisdictions:  "The majority of courts addressing the issue have, for assorted reasons, rejected the admissibility of helmet evidence." Nunez, 217 F.Supp.2d at 567.  It explicitly acknowledged Illinois as being within that majority, citing Hukill v. DiGregorio. Id. at 568.  

The M/V Morgan Court's remark about helmet evidence is neither binding law, nor a persuasive source in support of the admissibility of such evidence.  It is likely, in fact, that the court never intended it to be either.  As noted earlier in this post, the case had nothing to do with a bicycle crash.  It was not a personal injury case.  The court had not been asked to consider bicycle helmet evidence at all.  Its comment about bike helmets was what is generally referred to in the legal world as dictum, an aside remark by a judge that is not intended to create binding authority.  But such comments, like a bullet fired into the air, can cause unintended harm.  Any attorney representing a bicyclist in a personal injury case should be familiar with M/V Morgan and be prepared to educate the trial judge that the commentary in that case concerning bicycle helmet evidence does not reflect Illinois law.

Monday, October 13, 2014

Steel Road Plates Need Not Pose Hazard To Bicyclists

A bicyclist riding over steel road plates
at Washington & Dearborn on Oct 10, 2014
-- photo by Brendan Kevenides
The following article appeared on the Urban Velo blog on October 9, 2014.

Steel road plates suck.  Ask any urban bicyclist and they'll tell you from experience about steel plates. They are often not installed flush with the pavement or at least with tapered ramping.  Many times they shift so that dangerous gaps exist between them and the street, or between two or more plates. Even when they are installed correctly they get very slippery when wet.  But it does not have to be this way.  In fact, it is not supposed to be that way at all.  There are standards in place which prescribe the properties of steel road plates and how they are to be installed.

Steel plates are generally used to cover trenches created in the road way to allow traffic to use an area during off work hours while construction is ongoing.  Steel is generally used because it is tough yet elastic.  It can take the heavy loads from motor vehicle traffic without breaking.  However, for bicycle traffic, not to mention pedestrian and motorcycle traffic, they can pose hazards as noted.  In light of that danger many local departments of transportation have adopted guidelines and specifications regarding how they are to be used.  For example, in Chicago companies utilizing steel plates to cover areas that have been excavated must use plates that are "safe for pedestrians, bicycles and vehicles."  Plates must be installed so that gaps "between adjacent plates must be no greater than 1/2 inch."  When they are placed in a bicycle lane they "must be orientated perpendicular to the travel way, whenever possible."  They "must be firmly bedded and secured to the adjacent pavement to prevent rocking or movement."  Steel plates "in the path of bicycle traffic shall have ramps installed" or a plate locking system in place.

The Chicago Department of Transportation's Rules and Regulations do not make specific reference to plates having anti-skid properties.  However, the general requirement that "all plating. . . be safe for bicycles" arguably covers that issue.  Gregory Pestine, a civil engineer with Robson Forensic based in Chicago has stated in his pamphlet, Steel Road Plates & Roadway Surfaces in Work Zones,that "plates should be coated with an anti-skid coating."   Notably, the New York City Department of Transportation requires just that.  Its rules require that, "All plating and decking shall have a skid-resistant surface equal to or greater than the adjacent existing street or roadway surface."  According to Guidelines on Motorcycle and Bicycle Work Zone Safety, published by The Roadway Safety Consortium, "Covering steel plates with a material that increases friction helps motorcyclists and bicyclists retain control, especially in wet weather."

A quick Google search reveals that steel road plates with anti-skid properties are common and easy to come by.  But is it just me, or are they rare to see in the wild?  I having been riding in Chicago regularly for a long time and I cannot say I have ever seen a steel road plate that had slip resistant properties or coating.  My experience here has been similar to what a group called Transportation Alternatives found in a 2004 study looking into the matter in NYC.  It found that 66% of to 1,006 metal construction plates it looked at in Manhattan were not skid resistant.  I am not aware of any similar such study pertaining to Chicago, but I would be surprised if we fared better.

If you see an unsafe plate you should call your city's 311 service and report it.  Very serious injuries can result from plates that are not compliant with safety guidelines.  If you are injured due to a slippery or otherwise unsafe plate you may have a viable case against whomever installed it.

Thursday, October 9, 2014

Police Looking For Semi Driver Who Critically Injured Chicago Bicyclist

Chicago police have issued an alert, asking the public for help tracking down the driver of a white semi tractor who struck and critically injured a bicyclist on Tuesday afternoon in McKinley Park. Still photos taken from surveillance video were posted on Twitter last night by the CPD showing the vehicle on South Ashland Avenue a few minutes before the incident:


The crash took place at approximately 4:25 p.m. on October 7th near the 3600 block of South Ashland, according to DNAInfo Chicago.  The truck was heading south when he allegedly hit a 47 year old man on a bicycle then left the scene.  Police describe the driver as a white male in this thirties with a slender to medium build, blonde hair with a short clean cut beard.  Anyone with information about this incident or the driver is asked to contact the Chicago Police Department Major Accident Investigation United at 312.745.4521.  The name of the bicyclist has not been released.

Unfortunately hit and run incidents like this are not uncommon. Recently, our law firm held a trucking company responsible for causing injury to a bicyclist even though the driver left the scene and was never located.  Illinois law dictates that a commercial truck bearing a company logo and US-DOT number of a corporation is operating pursuant to the corporation's authority, and therefore, the corporation is vicariously liable for the driver's negligence.  It is a bit difficult to see markings on the truck involved in Tuesday's incident in the photo released by police.  However, closer study of the video may reveal the name of the trucking company and the vehicle's U.S. DOT number.  Hopefully, the driver will be located and held responsible.  But if he is not, it may be possible to hold his employer liable for the damage he caused.

Friday, September 26, 2014

On Your Mark, Get Set, Waiver! When Bicyclists Sign Their Rights Away.

As an attorney who represents injured bicyclists, and who also sponsors cycling clubs, race teams and bike events I love and hate exculpatory agreements.  These rights waiving documents can be devastatingly bad for the individual cyclist who has been harmed due to someone else's negligence. On the other hand, such waivers protect cycling groups who invest time, money and resources in putting together events that bicyclists enjoy.

Generally, an exculpatory agreement is a document in which one party agrees to waive his or her right to seek compensation or sue for injuries caused by the other party's negligence.  Sometimes these agreements are referred to as waivers.  Most bicycle race and event organizers require participants to sign such an agreement before hand.  Virtually all 50 states have their own set of laws regarding whether and when exculpatory agreements may act as a bar to liability.  Here in Illinois our appellate court had the opportunity in 2011 to consider the binding effect of a waiver used widely by USA Cycling, the national governing body for bike racing in the United States.  

In Hellweg v. Special Events Management, a cyclist, Brian Hellweg, was injured during a bike race organized by the defendants.  The race was to be on a "closed course" held on municipal streets.  Mr. Hellweg was injured when he crashed into a nonparticipating cyclist who had wandered onto the course during a warm-up session.  He filed a lawsuit against the race organizers alleging they failed to close the course as they had promised.  The defendants sought dismissal of the case citing a USA Cycling Event Release Form which Mr. Hellweg had signed.  The appellate court upheld dismissal of the case.  The Court was unpersuaded by the plaintiff's argument that the manner in which the crash occurred was not reasonably foreseeable. Though the Court agreed that "foreseeability of a specific danger is" an important factor to consider when assessing the scope of an exculpatory clause, it held that it was not necessary to spell out every conceivable danger for the agreement to be upheld.  The Court looked at the language of the agreement which read in pertinent part:
I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THIS EVENT, whether as a rider, official, coach, mechanic, volunteer, or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation:  dangers of collision with pedestrians, vehicles, other riders, and fixed or moving objects; THE RELEASEES' OWN NEGLIGENCE, the negligence of others; and the possibility of serious physical and/or mental trauma or injury or death associated with the event, I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers, promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with this event, and their respective agents, officials, and employees through or by which the event will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES' OWN NEGLIGENCE... (Emphasis in original)
Id.

The Court felt that the presence of nonparticipants in bicycle races was an inherent and reasonably foreseeable risk.  It also concluded that in any event the language of the agreement clearly contemplated the possibility "of collision with pedestrians, vehicles, other riders, and fixed or moving objects."

While Hellweg was a clear victory for race and bike event organizers it is important to point out that it does not stand for the proposition that exculpatory agreements will bar liability in all circumstances.  They don't.  Waivers do not bar liability for willful and wanton conduct; that is conduct in which one shows a reckless disregard for the safety of others.  For example, an organizer who threw ball bearings onto the course during a race would not be protected where his conduct caused injury to a rider.  Use of fraud to induce one to sign an exculpatory agreement would also void its protection.  The bottom line, however, is that before participating in a race or other bike event requiring a waiver of your rights, understand what you are getting into.  If you are injured have an experienced attorney review the waiver language and consider the circumstances of the crash to determine the likelihood that your rights have indeed been waived.

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