Wednesday, November 11, 2015

Cook County Jury Finds For Injured Bicyclist Ticketed By Police

After deliberating for more than five and a half hours on Friday, a Cook County jury decided to compensate a male bicyclist injured in a 2011 collision with a SUV in Palos Heights.  Our firm represented the cyclist at the week long trial.

The case was a tough one and the verdict of $37,000 reflects the jury's finding that our client contributed significantly to cause the crash.  Police had ticketed the cyclist at the scene for causing the collision.  The defendant driver's insurance company had sent the cyclist a bill for the substantial damage done to his Lexus SUV.  No settlement offer was ever made by the defense.

The crash occurred at around 8:00 a.m. on May 21, 2011 at the intersection of Harlem Avenue and 131st Street at the northern edge of the Burr Oak Woods Forest Preserve.  The then 59 year old cyclist was riding his bike on the Tinley Creek Bike Path which winds through the preserve.  The defendant driver, a retired surgeon, and his wife were driving north on Harlem.  The bike path crosses Harlem a few feet south of 131st.  Here is a depiction of the intersection used at trial:

The cyclist approached Harlem from the east.  When he reached the crossing, marked with thick white diagonal lines, he saw that the light controlling cross traffic was red so he proceeded.  At the same time, the defendant was stopped in the left turn lane on Harlem waiting for the light to change so he could proceed west on 131st Street.  As the cyclist entered the crossing, the left turn arrow controlling the driver's lane turned green and he proceeded.  The bicyclist struck the left side front quarter panel of the vehicle and fell to the ground breaking his left wrist.  The break was bad, requiring surgery.

Our biggest challenge at trial was overcoming the defendant's assertion that our client knew the traffic signal was changing and attempted to speed across the intersection to beat the light.  The defendant's attorneys had two important pieces of evidence to support that position.  One, was the testimony of a witness, an emergency medical technician, who happened to be in an ambulance stopped at the intersection facing east on 131st Street at the time of the crash.  He testified that while his vehicle was stopped at a red light at 131st and Harlem he saw the man on the bike cross at what seemed to be a high rate of speed just before the collision.  The implication was that if the ambulance had a red light then so must have the cyclist coming from the opposite direction.  Secondly, the defendant argued that the extensive damage to the SUV and the severity of the bicyclist's injury suggested a relatively high speed collision; again, supporting the notion that the cyclist was trying to beat the light.

Honestly, we were worried.  It was based on the witness's observations that the responding police officer laid fault at the feet of our client.  Would a jury do the same?

The jury never heard that the cyclist was ticketed.  The citation was thrown out and generally the fact that one party or another received a traffic ticket is not admissible evidence at trial.  It is the province of the jury to determine fault based on the evidence, not that of a police officer making a snap decision based on someone's observations.  We were able to demonstrate that the witness was very unsure of what he saw and when he saw it.  Also, the law and evidence strongly supported our position that the driver failed to look before proceeding into the intersection.  The witness felt certain that his vehicle was stopped at a red light facing east on 131st Street when the collision occurred.  However, he could not say that the ambulance had quite reached the intersection when the cyclist first started across Harlem.  This allowed us to argue that our client entered the crossing when it was still legal for him to do so, but that he simply got caught in the change of lights.  During my closing argument I showed the jury a blow up of a portion of the Illinois Vehicle Code which instructs drivers how they must proceed when facing a light that has just turned green.  Section 11-306 requires that a motor vehicle facing a green arrow signal, "Shall yield the right of way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection."  Certainly bicycles are "other traffic."  Since the point of impact was with the front side of the SUV, had the driver looked before proceeding the cyclist would have been visible to him just a couple of feet to his right.  Therefore, he either did not look, despite his insistence to the contrary, or he looked but did not see our client.  Either way, I argued that the defendant violated section 11-306 and was negligent.

The jury clearly had a hard time figuring this case out having spent so long deliberating.  In the end they reached a compromise verdict.  They felt that the driver was indeed negligent, but so was our client.  It is hard to see the result as unfair.  

Getting caught in the change of lights is a consistent problem for bicyclists.  When crossing a wide intersection -- Harlem at 131st is five lanes wide -- there is a good chance that you will get caught in the change of lights.  Bicyclists should be mindful of any crossing countdown, if there is one, before starting into an intersection.  Consider whether your light will remain green, or at least yellow, until you reach the other side.  On the other hand, drivers simply must look before proceeding.  The law, and common sense for that matter, makes it clear that a driver cannot simply charge forward on a green light.     

Thursday, October 22, 2015

Taxi Driver Flees Crash With Chicago Bicyclist, Later Pays

Tilek Tulemyshev in an
undated photo
A taxi driver who fled the scene after striking a Chicago bicyclist from behind in Wicker Park could not escape accountability.  The driver, Tilek Tulemyshev, and the cab company, Best Cab Corp, have paid $300,000 to the injured biker, a 33 year old airline attendant, following a lawsuit filed against them by FK Law.

On September 10, 2011 the female cyclist was riding northbound on North Damen Avenue with her husband and a friend.  When the three reached Damen's intersection with West Webster Avenue they stopped for a red light.  At the same time, Mr. Tulemyshev was stopped along the curb to their right picking up a fare.  When the light turned green the bicyclists began pedaling across the intersection. The taxi also accelerated forward.  Upon reaching the middle of the intersection, Mr. Tulemyshev crashed into the rear of the woman's bike throwing her into the street where he then ran her down. The woman's husband screamed for him to stop.  He did for a moment.  He then threw the taxi into reverse and stomped on the accelerator driving the taxi backwards back into the intersection where he rammed another vehicle.  With the terrified fare still in the cab, Mr. Tulemyshev then put the car in drive and sped east on Webster.  A block or two later he abruptly stopped, let his passenger escape then drove off.

The bicyclist was left with scrapes and bruises over much of her body.  More significantly, she suffered torn cartilage in her left knee requiring surgery.  Her injuries left her unable to work for a significant period of time.  She incurred over $60,000 in medical bills.

Despite undeniable negligence by the driver, he and his attorneys initially refused to compensate our client for the harm he caused.  Instead they asserted that her knee injury was the result of a skiing accident years before the crash.  That earlier incident caused tears to her left anterior cruciate ligament and medial meniscus.  However, for years before the 2011 crash she was symptom free and lived a healthy, active life.  She regularly ran and rode her bicycle without pain.  That changed after being hit by the taxi.  Our challenge was to succinctly demonstrate that the crash was the cause of her ongoing knee problem.  It was complicated.  The first orthopaedic specialist that evaluated her felt that the crash had only resulted in a sprain to the knee.  However, another specialist examined film of her knee and determined that while ACL and meniscus tears preexisted the crash, that at least the injury to her meniscus was exacerbated by the collision and was a very significant factor in her knee problems since.

The evidence regarding her knee injury was solid, but the defense seemed to view it as nuanced. They continued to refused to offer what we and our client felt was reasonable compensation.  Then, two things happened which seemed to tighten the screws.  First, Mr. Tulemyshev, at first cooperative during litigation, disappeared.  Neither his attorneys nor we could locate him.  He never did submit himself for a deposition in the case.  Secondly, we filed and won the right to add a count to the lawsuit seeking punitive damages.  The vast majority of personal injury lawsuits filed in Illinois seek only compensatory damages, that is, money to compensate the victim for the harm caused.  Punitive damages are rarely provided for and are meant to punish a wrongdoer.  The approval of a judge is necessary even to allow a jury to consider providing for punitive damages.  Once we argued for and receive that approval in this case, the defense finally saw the light and did the right thing.

Thursday, October 1, 2015

Quick Thinking Chicago Bicyclist Snaps Photo of Vehicle That Hit Him, Helps His Own Case

He thought he got away with it.

When the driver of an Infiniti SUV struck a Chicago bicyclist earlier this year, fracturing his collar bone, he chose to flee.  What he did not count on was the bicyclist, a 35 year old Chicago pastry chef, having the wherewithal to snap a photo of his license plate.  This enabled the police to quickly track down the driver and cite him for failing to exercise due care to avoid hitting a bicyclist.  The cyclist's quick thinking also helped us as his attorneys secure for him a sizable settlement.

The collision occurred at around 7 p.m. on February 12, 2015 on Chicago's northwest side. The bicyclist was riding home from work southbound near 5562 North Lincoln Avenue.  The weather was cold, but dry.  Though the cyclist did not have a headlight on his bike, his helmet had reflective properties and the area was very well lit.  He was riding on the right side of the road.  When he passed in front of a curb cut for the parking lot of a 7-Eleven store, the driver of a 1999 Infiniti QX4, northbound on Lincoln, suddenly made a left turn into the lot.  When he did he smashed into the bicyclist, "t-boning" him.  The driver, who had numerous past moving violations, did not help the badly injured cyclist.  When it became clear that he was about to take off, the cyclist pulled out his smartphone and snapped a photo of the vehicle's license plate.  With the plate number Chicago police officers who arrived at the scene went to work locating the driver.  The bicyclist was loaded into an ambulance and taken to Swedish Covenant Hospital.  He was diagnosed with a right clavicle fracture.

The bicyclist eventually hired our law firm to represent him against the driver.  After several months of work we were able to secure a settlement with the driver's insurer, GEICO, 4 1/2 times greater than his medical bills.

There are a few interesting points here.  Firstly, the importance of riding with a device of some kind that can take pictures, a smartphone, camera or GoPro type device, and using it if something bad happens, cannot be overstated.  Had our client not photographed the vehicle's plate the driver likely would have faced no repercussions for his conduct.  Though there are many video cameras positioned throughout Chicago, most do not reproduce images of sufficient quality to enable the police or us to make out a plate number.  Secondly, if the driver flees and is caught the repercussions will be far greater.  Had the driver stuck around we still would have resolved the case successfully, but GEICO undoubtedly understood that they had to pay more because the driver left the scene.  Thirdly, though all bicyclists are required by Illinois law to ride with at least a front facing headlight at night, not having one does not necessarily preclude recovery.  The crash occurred in a very well lite area and the bicyclist wore a helmet with reflective properties.  Despite his lack of a headlight, the driver should have seen him.

Thursday, September 17, 2015

Chicago Bicyclist Killed By Semi Driver In Avondale

One of the bike lanes on North
Kedzie Avenue where Robert
Lewis was killed
Chicago bicyclist, Robert Lewis, died on Friday a week after being struck by a semi truck as he rode his bike in the 3400 block of North Kedzie, according to the Chicago Sun-Times.  He was 48 years old.  It will be of little consolation to his family that he is the first Chicago cyclist to die in four months.

The deadly crash occurred at 1:30 p.m. on September 2nd in Chicago's Avondale neighborhood. Though the details of the crash have not been reported both sides of North Kedzie where the crash took place have clearly marked, dedicated bicycle lanes.  It is not clear whether the semi driver was ticketed.

Monday, September 7, 2015

Bicycle Fatality in Aurora on Saturday.

The Chicago Tribune is reporting that a woman was struck and killed by a motorist Saturday morning.  It appears that the woman was crossing Densmore Road on the Virgil Gillman Nature trail with a group of other riders when she was struck.  Densmore Road is a wide open flat stretch of roadway where it crosses the trail.  There are two signs in each direction warning approaching drivers of the bicycle trail crossing and the speed limit is posted as 45 mph.  The fatal rural Aurora collision occurred shortly before 11am, and the weather was bright and sunny.  Make no mistake, this collision would have occurred in broad daylight.  While police did not issue any charges, I would be interested to know if any investigation was conducted to determine if the driver was distracted or on the phone at the time of the collision.

We have seen a number of cases in which a driver drove through a group of cyclists attempting to negotiate a road crossing.  Inevitably the driver points to right of way as a rationale for so much as failing to look in front of their vehicle or responsibly applying the brakes in order to avoid a collision they knew or should have know to be imminent.  We hear the same language over and over from defendants in cases like this, "...came out of nowhere...  ...barreling down the street...  ..I didn't see her..."  Failure to see what is in front of one's vehicle is negligence at the least.  Declining to take reasonable actions to avoid a collision because of one's right of way is willful.

One undertakes a tremendous responsibility when they get behind the wheel of a car.  It's almost like driving a one ton loaded gun down the road.  The very least we should expect of a person undertaking such a grave responsibility is that they look in front of them as they drive down the road in broad daylight and that they take reasonable actions to avoid collisions.

Thursday, September 3, 2015

Ignore NPR, Bicycling Is Safe

An irresponsible piece of journalism about biking injuries and deaths was published yesterday by National Public Radio under the headline, As More Adults Pedal, Their Biking Injuries and Deaths Spike, Too.  The story noted the fact that the number of people biking regularly has substantially increased over the past several years, while spotlighting a "striking" rise in the number of injuries and deaths from cycling among adults.  Much emphasis was placed on crashes involving middle aged men who, supposedly wanting to emulate disgraced former pro cyclist Lance Armstrong, ran out in droves a decade ago to purchase uberfast road bikes which they proceeded to crash.

Yes, bicycling has been on the rise for quite some time, particularly as a form of transportation, as opposed to recreation or sport.  Chicago, for example, saw a 150 percent increase in the number of people bicycling to work between 2000 and 2010.  Similarly, New York City has seen staggering growth in the number of people biking to work.  Despite this growth, "Bicycling  remains a healthful, inherently safe activity for tens of millions of people every year," according to the U.S. Department of Transportation.  Tens of millions.  In contrast, 743 bicycle related deaths were reported nationwide for the year 2013, according to U.S. DOT.  In Chicago the number of fatal crashes decreased by 28 percent between 2005 and 2010, according to the Chicago Department of Transportation.  While one death is one too many these numbers neither suggest that bicycling is exceptionally dangerous nor that it is becoming more so.

With more people riding their bikes there will naturally be more traffic crashes involving bicyclists.  But more bicyclists on the road likely makes biking safer for the individual rider.  The idea is that there is safety in numbers.  As drivers get used to seeing more bikers, they are more likely to be on the lookout for dangerous interactions.  It is true that, according to the U.S. DOT, "bicyclists seem to be over-represented in the crash data."  Bicycle trips account for one percent of all trips in the United States, yet represent nearly two percent of all traffic fatalities.  But no reliable data exists to correlate the number of miles traveled by cyclists and the risks to which riders are exposed.  "Until we have better exposure measures, we just don't know how bicyclist risk compares to other modes," says the U.S. DOT, adding, "But the health benefits of riding may offset some of this risk."

The cause of bicycle crashes varies depending on locale, time of day, alcohol consumption and other factors.  About half of all bike crashes are due to falls caused by things like roadway defects, loose gravel and the like.  Much of the rest is due to driver inattention.  In urban areas I see crashes involving bicyclists caused largely by drivers who fail to look for cyclists while opening their doors, and failing to see cyclists within intersections.  In rural and suburban areas a bicyclist faces an increased risk of being hit from behind by an inattentive driver.  "Nearly a third of all injuries are caused when bicyclists are struck by cars," according to the U.S. DOT.  The bullshit "Lance Armstrong effect" has nothing to do with it.  This "effect" was cited by bicycle industry people in an attempt to explain the increase in road bike sales back when everyone thought Lance Armstrong was worth admiring.  Nowadays sales of new bikes probably accounts for a relatively small percentage of all bikes purchased.  Many of us by bikes second and third hand to use for commuting.  Look out your window NPR, lycra and carbon fiber, while cool, is just not the norm. 

On my daily commute along Chicago's so-called "hipster highway" I see more comfy clunkers than super light racers.  And each year, as the biking infrastructure improves I see more and more regular people on regular bikes.  In April, 2015 reported that bike count numbers rose yearly in New York City from 2006 to 2010, correlating with a near doubling during the same period of time of the miles of bike lanes.  People want to ride their bikes.  Give them a reasonably safe place to do it and they will.

So who cares if a media outlet reports that biking is dangerous?  We all should.  The offending story re-enforces the tired and inaccurate notion that bicyclists are foolish risk-takers, or wannabes, If they get hurt they just got what was coming to them. This framing creates a real hazard.  It makes our lives seem less worthy of protection and less worthy of the continuing work necessary to make our nation's roads accommodating to cyclists.  

Friday, August 7, 2015

Driver Who Killed 65 Year Old Bicyclist In Jersey County Taken Into Custody

Kajavion McCarvey
A 21 year old man is in custody more than two months after killing a 65 year old bicyclist in Jersey County, Illinois, according to  Kajavion McCarvey of East Alton turned himself in on Wednesday after Jersey County authorities announced charges of Aggravated DUI and Reckless Homicide against him earlier this week.

Carol Admire, Courtesy of
The arrest stems from a collision on May 23rd that left Carol R. Admire of Alton, Illinois dead at the scene.  She was riding southbound on the shoulder of State Highway 100 around 4:00 p.m. when the allegedly intoxicated driver, also southbound, hit her with his pickup truck, according to the  Initial media reports of the crash presented a slanted view of the incident, suggesting that Ms. Admire had been riding in too dangerous a location along the busy road.  Local television station KSDK placed emphasis on the existence of a bicycle path on the other side of the roadway from where Ms. Admire was riding.  The no-so-subtle suggestion is that she should have been riding on the path instead.  See for yourself:

It is important to remember that Illinois, unlike some states, does not require that bicyclists use a separated bike path where one has been provided.  Also, Ms. Admire was apparently riding with traffic, on the southbound side of the highway also known as Great River Road.  As noted in the news report above, the shoulder on which she was riding was commonly used by cyclists.  Great River Road is a scenic highway that runs along the Mississippi River.  In light of these facts, it is deeply disappointing that initial reports placed undue emphasis on the bicyclist's conduct rather than on the driver who may have been intoxicated.

In our experience, driver's rarely face criminal charges from causing injury or death to bicyclists.  It is encouraging to seen that the State's Attorney in Jersey County has decided to pursue charges that could see the driver facing in excess of 14 years in jail.

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