Friday, May 15, 2015

Brain Injuries and Bicycle Cases

By Jim Freeman

We see brain injuries over and over in our bicycle cases.  The severity of theses injuries varies widely from a headache to permanent functional brain damage.  My experience is that there is no bulletproof preventative when it comes to brain injuries.  Although helmets may help to reduce injury, bicyclists who use helmets suffer brain injuries too.  If the hit is hard enough you may still sustain a brain injury despite proper helmet use.

Rural collisions tend to yield a higher percentage of head injuries than collisions in town.  Speed limits on rural roadways tend to be much higher than speed limits in town.  In my experience, speed of the automobile at time of impact is directly correlated with the likelihood that a given accident will result in catastrophic injuries.  The faster the vehicle, the more likely that injuries sustained by a bicyclist will be severe. 

Your brain has the consistency of gelatin suspended in fluid.  It is cushioned from everyday jolts and bumps by the cerebrospinal fluid in which it floats.  In an accident you may experience a blow to the head causing your brain to bounce forcefully against your skull.  This can result in bleeding in or around your brain and damage to nerve fibers.  Common symptoms of a brain injury are loss of consciousness, memory loss, headaches, nausea or vomiting and slurred speech.

Concussions are fairly common brain injuries.  People who have had a concussion in the past are at higher risk of having concussions in the future.  The concern after a concussion is that the blow to the head may have caused serious bleeding or swelling inside the skull. Symptoms of such injuries may not appear until hours or days after the injury.

If you experience symptoms of a concussion it is best to see a doctor.  Neurologists typically specialize in such injuries.  A doctor may prescribe a CAT Scan or conduct a neurological exam.  Such an exam usually includes checking your memory and concentration, vision, hearing, balance, coordination and reflexes.  People who suffer concussions often suffer from post-concussion syndrome in which concussion symptoms last for weeks or months following the accident.  I often hear client who have suffered a head injury complain of "fogginess" or an inability to concentrate.  Such injuries should be taken seriously and examined by a specialist.

A common story we hear when a bicyclist is struck by a car goes like this;

The last thing I remember I was riding my bike down the street, then I woke up in the hospital with my family around me.

When a bicyclist is struck by a car and they hit their head it is common to experience some loss of memory around the time of the accident.  In such a case it is important that you conduct a independent investigation to determine how the accident happened before you speak to the driver's insurance company.

You should understand that some insurance companies will take advantage of your loss of memory.  We see time and time again that negligent drivers are all too prepared to lie about the events of an accident because they are worried about their own liability or an increase in their insurance rates.  The driver will give a statement to his insurance company that blames the bicyclist for the collision.  If you can't remember how the accident happened the insurance company will defend the case based on their insured's version of the events.  Your claim may be denied outright.

At my law firm we have years of experience investigating collisions in which the bicyclist can't remember what happened.  We conduct our own investigation and do not depend on the police or driver statements for a determination of fault.  It is always best if the client calls us before calling the insurance company in such an instance.  It is also best if we get the case as soon as possible.  Evidence starts to disappear or be destroyed the moment the accident occurs, so it's best if we can start our investigation as soon as possible.   

Thursday, May 7, 2015

More Facts Are Needed To Explain Why Driver Who Struck and Killed Cyclist in Sauk Village Was Not Cited By Police

A 59 year old male bicyclist was struck and killed by a driver in Sauk Village earlier this month, according to nwitimes.com. The incident occurred near the intersection of East Sauk Traill and Route 394 at around 7:49 p.m. on April 29th.  The man, Robert Kirn, died several hours later at Stroger Cook County Hospital.

It is not clear how the fatal crash occurred as few facts have been reported by news outlets. According to nwitimes.com, the driver did not receive a traffic citation following the incident.  At the time of the crash the motorist was driving his Dodge Intrepid northbound on 394 when he struck Mr. Kirn in the intersection.  Mr. Kirn was attempting "to cross both north and southbound traffic" when he was struck, according to CBS Chicago.  This description insinuates that Mr. Kirn was doing something wrong when he was hit.  But without more it would be unfair to draw that conclusion.  

East Sauk Trail is not a trail, but a four lane roadway.  Its intersection with Route 394 is controlled by a traffic light.  It would have been entirely legal for Mr. Kirn to have pedaled his bike across Route 394 on East Sauk Trail assuming the traffic light was in his favor.  It would be wise not to jump to conclusions about how this tragedy occurred without more information.

Thursday, April 30, 2015

44 Year Old Bicyclist Killed By Driver In Oak Lawn

A 44 year old male bicycle was killed in Oak Lawn on Monday after being struck by a driver, according to The Chicago Tribune.  Ricardo Longoria was struck as he rode his bicycle in the 9500 block of South Mayfield Avenue, a small two lane street which links with West 95th Street in the south suburb.

No details of the crash have been reported by any news outlet.  However, the Tribune, and other sources, report that following an autopsy, the Cook County medical examiner's office rule the death "an accident."  That unimportant finding offers no insight into how the collision occurred or whether the driver is culpable in Mr. Longoria's untimely death.  

Wednesday, April 29, 2015

City of Chicago Refuses To Fix Road Hazard It Knew About. Cyclist Is Compensated For His Injuries.

Our client's bike wheel trapped by the
hazardous drainage grate at 4738 West
Lawrence. This photo was taken weeks
after the crash to demonstrate what had
caused his injuries.
The City of Chicago has lost its attempt to deny responsibility for injuries caused by a drainage grate that it knew posed a danger to bicyclists.  The grate, located in the 4700 block of West Lawrence Avenue, was identified by the Chicago Department of Transportation (CDOT) in 2006 as among those posing a hazard to cyclist and needing to be replaced.  The work never occurred. As a result, a 50 year old male cyclist suffered a broken arm when the front wheel of his bike became trapped in the grate in August, 2011. The grate was located within a clearly designated bicycle lane.

Our law firm filed a lawsuit on the bicyclist's behalf alleging that the City was negligent for failing to replace the dangerous grate with a safe one.  The City subsequently sought dismissal of the lawsuit claiming it owed the bicyclist no duty to replace the grate.  A Cook County judge denied the City's motion for dismissal, which recently lead to successful resolution of the case.  Unfortunately, the hazardous grate remains to this day.

The case arose from an incident in which our client was riding his bicycle in the marked bike lane westbound near 4738 West Lawrence Avenue.  The area is where Lawrence passes over the Edens Expressway.  The crash occurred just as the cyclist was approaching the bridge.  As he pedaled in the bike lane motor vehicle traffic to his left was backed up. Without warning, one of those vehicles veered into the bicycle lane causing the bicyclist to swerve to his right to avoid a collision. When the car swerved it blocked his vision of the sewer grate.  The front wheel of his bicycle dropped into one of the slots of the grate and became trapped, stopping his bike suddenly. His body was thrown forward off of the bike and into the street where he broke his arm.

With its dismissal motion the City tried to avoid responsibility on several fronts.  Firstly, it claimed that the grate was not located on City property and that it, therefore, had no duty to address the hazard.  Secondly, it argued that the cyclist was not an intended user of the place where the grate was located.  The City claimed that the grate was not in a bike lane, but was in the gutter area. Thirdly, the City claimed that it was the cyclist's fault for not watching where he was going.  Our firm filed a responsive brief demonstrating why each of the City's arguments should fail.  We explained to the Court that while the area where the grate was located fell under the jurisdiction of the State of Illinois rather than the City of Chicago, that the State had contracted with the City for the City to maintain its roadways, including the area where the grate was located.  Therefore, the City's argument that it owed no duty to cyclists to replace the grate should fail.

We also addressed the City's argument that the grate was not located in a place that a bicyclist was intended to be.  The City's position in this regard relied on the infamous case of Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (1998).  In it, the Illinois Supreme Court created the rule of law that local municipalities may be liable to bicyclists only for injuries caused by a road hazard when the hazard was encountered upon an area permitted and intended for use by bicyclists.  In other words, the a municipality could be held liable only where the hazard was in an area explicitly designated for bicycle traffic like a bike lane.  In our case, the City argued that the grate was not located in the bike lane.  Here is a photograph of the grate as it was around the time of the crash:



The City argued that the bike lane goes from the white pained line to the cement gutter in which the grate was located.  To us, that seemed awfully convenient for the City.  Just under what authority was the City claiming that the bike lane ended at the cement "gutter" rather that the curb?  And just how was a cyclist supposed to know that the bike lane ended where the City claimed?  During the course of the litigation I took the deposition of CDOT Deputy Commissioner, Luann Hamilton.  During her deposition she she stated that on a road with no curbside parallel parking, the bike lane runs only to the gutter at the edge of the roadway. However, when shown a photograph of another bike lane along a curb in the City of Chicago -- the bike lane along Dearborn Street -- she admitted that the gutter area there is part of the bike lane.  Here is the photo from the Dearborn bike lane I showed to her:


She was at a loss to explain this inconsistency.  Furthermore, in an internal memo originated by Ms. Hamilton in 2006, the City had specifically identified the grate at issue as being within a "bikeway," and posing a hazard to bicyclists "because the slots of the grates are aligned parallel to the curb so that the wheel of a bicycle can easily get caught in the slots causing the bicyclist to crash."  We argued that the City itself had identified the grate as being within the bike lane.  We also had case law on our side.  In turned out that the City's argument was not novel.  The very same position was taken by the City of East Peoria, Illinois more than two decades earlier in Cole v. City of East Peoria, 201 Ill.App.3d 756, 559 N.E.2d 769 (3rd Dist. 1990).  In that matter a child was injured when she was riding her bicycle on the edge of a road, and the tire of her bicycle fell through a storm sewer grate with openings parallel to the edge of the road, just as in our case.  The grate at issue then was located "on the side of the road" between the curb and white stripes painted four feet from the curb. Cole, 201 Ill.App.3d at 759.  The girl's family alleged that the City had a duty to maintain the area free of such hazards and was negligent for failing to do so.  Intially, the trial court granted the defendant municipality's dismissal motion.  However, the appellate court reversed that ruling stating:  
The necessary factual question of liability is raised here by evidence that (1) the City       ordered a white line painted a distance from the curb (four feet), indicating an intention   the area be used by others than those driving automobiles; (2) the City became aware the area was being used by many bicyclists; (3) the City became aware that at least one         person had been injured locally when a bicycle tire was caught between similar grates;     and (4) the City had become aware that the type of grates used did not meet then existing standards and replaced parallel grates when they were damaged.  Thus, evidence was       produced that the City both intended and permitted cyclists to use the four-foot strip; it    was foreseeable that the use would continue; the condition was unsafe. . .
Cole, 201 Ill.App.3d at 761-2 (emphasis added).
The similarities between the Cole case and ours could not be overlooked.  As in that case, the City of Chicago placed a single white line the the left of the curb indicating that the area was to be avoided by motor vehicles.  The City was also aware of the dangers posed to cyclists by the grate as evidenced by the findings in the 2006 memo.  For these additional reasons we urged the Court to deny the City's request for dismissal.

The City's final argument, that the grate was an "open and obvious" hazard, seemed especially cynical.  The obvious implication of the City's position was that the crash was the bicyclist's own fault.  He wasn't paying attention.  We addressed this part of the City's motion in two ways:  Firstly, the danger posed by the grate was not open and obvious.  Sure, if you looked you could see a grate. But there are thousands of grates throughout Chicago.  Most of them are not particularly dangerous for cyclists.  However, that the grate at 4738 West Lawrence had very large slots that ran parallel to the direction of bike traffic would not have been obvious to a cyclist.  Secondly, under Illinois law, even if a danger is open and obvious if a person is likely to be distracted and therefore not notice the hazard then the defendant cannot escape responsibility.  In this case, the bicyclist was indeed distracted by a car which had entered the bike lane.  For that reason he was forced to alter his course and his bicycle wheel ended up caught in the grate.

The judge ultimately agreed with our arguments and did not allow the City to avoid its responsibility to compensate our client.  We were able to reach resolution of the case, providing our client with the means to pay his outstanding medical bills and compensating him for the considerable pain and suffering he experienced.  Sadly, however, the dangerous grate remains in precisely the same condition now as it was in 2006 and 2011.  I went out to take a look at it on March 28, 2015 and snapped the following photographs:

Approaching the grate cycling west on Lawrence.

This photo demonstrates how easily a bicycle wheel
can become wedged in the grate.

The grate swallows my front wheel.
We proposed making correction of the grate a part of settlement of the case.  At first the City's attorneys were amenable to this, but later declined to make the necessary fix.

Wednesday, April 22, 2015

Trek Bikes Announces Massive Recall After Serious Injuries

Trek Bicycles is recalling almost 1 million bicycles due to an apparent flaw in the design of quick release skewers equipped on bikes manufactured between 2000 and 2015, according to the U.S. Consumer Product Safety Commission.  Several injuries have been reported including a fractured wrist, facial injuries and at least one incident in which a rider was rendered paralyzed, according to U.S.A. Today.

The problem is that the front quick release skewer on the recalled bikes opens past 180 degrees. When left opened during riding -- a frequent mistake made by less experienced riders -- the skewer can become lodged into disk brakes rotors causing the bike to stop suddenly hurling the rider forward.  Trek is offering to replace the offending skewers with skewers that cannot open past 180 degrees free of charge to owners who bring their bikes to authorized dealers.

For a further description of the problem please see the video below, courtesy U.S.A. Today:

 

Tuesday, March 31, 2015

Defendant, Chicago Police Officer's Claim To CBS News That Bicyclist "Did Not Have The Right Of Way" Is Nonsense

Tina Danzy was doored by a police officer while
in the bike lane near the Chicago Police Department
Headquarters on S. Blue Island
On Saturday, CBS Chicago reported on a lawsuit our firm filed on behalf of Tina Danzy who was doored by a Chicago police officer. Somewhat surprisingly, the officer involved gave an interview to the CBS reporter claiming that Ms. Danzy "did not have the right of way."  We were not contacted to comment on the story.

The collision occurred on April 10, 2014 at around 4:50 p.m.  The weather was clear and pleasant.  The sun was still shinning.  Ms. Danzy, a very experienced city cyclist, was riding her bicycle in the clearly marked, dedicated bicycle lane southwest on South Blue Island Avenue.  When she reached 1412 South Blue Island, the police officer who had parked her vehicle along the curb to the right of the bike lane suddenly opened her door into Ms. Danzy's path.  The door sprung opened so quickly that there was nothing she could do to avoid it.  She sustained a deep facial laceration requiring sutures and injuries to her tailbone, thigh and right hand.

The idea that Ms. Danzy "did not have the right of way" is nonsense.  Bicyclists have the right to travel along the right side of roadways in Chicago and utilize the bike lanes provided for that purpose.  Drivers on the other hand have a duty, under both the Illinois Vehicle Code and the Municipal Code of Chicago to look before opening their doors.  The Municipal Code states:
No person shall open the door of a vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.
Police officers have the same duty as the rest of the citizenry to follow the law.  The officer who injured Ms. Danzy failed to look for bicycle traffic in the bike lane which she undoubtedly knew was immediately to the left of her vehicle.  As a result, she caused the crash and the resulting injuries.

As noted, we have filed a lawsuit against the officer and her employer, The Chicago Police Department, and intend to get our client compensated for the harms inflicted upon her and losses she has experienced, including the medical bills she has incurred and cannot afford to pay. 

Wednesday, March 25, 2015

No Driverless Revolution At The Expense Of Bicyclists And Pedestrians

Illustration by Adam R. Garcia
Apparently, driverless cars are right around the corner.  No longer the pipe dream of mad engineers in Silicon Valley, at least one manufacturer has promised that they will be here as early as this summer

Cars that drive themselves hold some appeal.  Imagine commuting to and from the 'burbs while reading a book or catching up on work, free from the constraints of holding a steering wheel and looking out of a windshield.  But what impact may driverless autos have on other road users, bicyclists and pedestrians?  As the technology proliferates we may see far fewer collisions as driver error is removed from the equation.  Mistake free driving may be just over the next hill, and lawyers like me may be out of a job.  (Please, hold your tears.)

But what if, as with most new technology, progress is bumpier than is presently envisioned?  Machines make mistakes.  What then?  How shall an bicyclist or pedestrian struck and injured by a car with no driver receive just recourse in the event of an accident?  In our present analogue world a person injured by a negligent driver may seek compensation directly from that driver, or their auto insurance provider.  The driver may or may not agree that he or she was negligent, but responsibility can generally be placed at the feet of either the driver or the injured person.  Sometimes there is fighting, finger pointing.  Litigation is sometimes necessary.  While there is some cost and work that goes along with that, it is usually not onerous.  But driverless cars may significantly alter the balance to the detriment of injury victims.  It is easy to imagine an occupant of a driverless car deflecting blame in the event of a crash to the manufacturer of the car.  "Wasn't me," they'll say.  "It was the machine."  At that point, the injured person is faced with the task of suing Tesla or Google or General Motors.  Good luck with that.

Product liability cases against manufacturers involve a lot more expense, time and complexity than do garden variety traffic crash cases.  Manufacturers should only be sued when the considerable risk and expense involved in doing so on one side is countered by very profound injury or death on the other.  A significant, but not usually life altering injury like say a broken limb may not justify suing a product manufacturer.  Lawyers often will not be able to economically justify taking such cases and, as a result, the vast majority of people injured in motor vehicle crashes would be out of luck.  Many would be left without a means for paying for a heap of medical bills and other expenses.

Legislators in each state should be prepared to prevent drivers and their auto insurers from rotely deflecting blame to the manufacturers of driverless cars in the event of a crash.  That need not be difficult.  Any time a driverless motor vehicle is involved in a crash causing bodily injury or death the owner of that vehicle should bear the burden of proving by clear and convincing evidence that a third party, such as the manufacturer, acted negligently so as to be the sole cause of the injury or death. Without such evidence then the driver/auto insurer should be held financially responsible. Such a rule of law would not make the car owner liable in all cases.  It would, however, shift the burden, and all of the cost and complexity that goes with it, onto the car owner and their insurance company to proving the car manufacturer's responsibility rather than onto the injured victim.  This, it seems to me, is the way it should be.  For one, this rule would encourage "drivers" of driverless cars to pay attention to what is happening around them;  to act as a fail safe back up for the machine.  If these vehicles work the way they are supposed to, they should be involved in few crashes anyway.  Secondly, it would make sure that recourse remains available for all injury victims.  If the car was defective in some way and malfunctioned it should be the vehicle's owner or their insurer that foots the bill for proving that the manufacturer was negligent.  Nothing in this proposal would prevent an injury victim from suing a manufacturer under legal theories presently available for doing so.  In cases with very profound consequences for the victim and their families that will sometimes be necessary.  But it would not always be required.

Search This Blog

Loading...