Monday, September 15, 2014

Cyclist's POV Video Highlights The Horror Of Getting Doored

Below is a point of view video of a bicyclist getting doored by a taxi cab passenger from his right while riding in a bicycle lane in New York City.  The bike lane is located along the right side of a one way street.  The layout reminders me of Dearborn Avenue, north of Kinzie.  It is terrifying, though apparently the cyclist was not seriously injured.




There are a couple of interesting things about the video.  Let's assume for the moment that this incident occurred in Chicago instead of NYC.  The taxi cab driver did an awful lot wrong here.  By failing to pull to the curb to disembark his passengers he would have violated Rule 5.18 of the City of Chicago Public Chauffers Rules & Regulations which states, "Chauffeurs, when discharging passengers, shall do so in a safe and legal manner.  Chauffeurs shall discharge passengers curbside." He also would have violated several sections of Chicago’s staunchly pro-bicycle Municipal Code, including section 9-80-035 which requires drivers to look for other roadway users before permitting any door of their vehicle to be opened; section 9-40-160 which requires drivers to exercise due care to avoid colliding with any person operating a bicycle; and section 9-40-060 which prohibits any portion of a motor vehicle to encroach into a bicycle lane.  This sort of collision happens a lot in Chicago.  We have successfully represented many cyclists who have been doored by taxi cab passengers who disembarked into a bike lane.  We are always successful in holding the cab driver responsible.

Though the driver is culpable, that does not let the passenger(s) off the hook.  Taxi cab passengers owe cyclists, and other road users, a duty to look before opening a door.  Within the last two years or so some cab companies in Chicago have installed side view mirrors in front of the rear doors of their vehicles to facilitate passengers' ability to look for cyclists.  Many cabs also have window stickers warning passengers to look before exiting.  A claim may be brought against the passengers for causing harm in this circumstance.  A passenger's homeowners or renters insurance will generally provide coverage.

The bicyclist in this video did some things right and a few things wrong.  Firstly, he was correct for riding in the far right edge of the bike lane.  Usually, the danger from dooring comes from the curb side of the bike lane.  Riding along the outer edge of the lane keeps cyclists outside what is usually thought of as the door zone.  Secondly, he was wise to ride with a video camera.  What happened was well documented should there be a factual dispute later.  On the other hand, he seems to have been riding pretty fast; perhaps too fast for the congested conditions.  He admits on the video to traveling at about 25 mph.  He may have overestimated his speed, but there he is saying it on video.  Twenty-five miles per hour in city traffic is pretty damn fast.  Also, he is too cavalier about the possibility he was injured.  Hopefully, he was in fact okay.  But given his speed and the suddenness of the stop, he would have been wise to go to the hospital to get checked out.  Perhaps he ended up doing so.  He also suggests that he did not want a police report created, stating on video that he tries to never talk to the police.  This is foolish.  If he needs to bring a claim later for his injuries (if there were any), the taxi company's insurer will insist on seeing a police report to confirm that the crash actually took place.  My guess is that the cyclist may wish he could walk back some of the things he said after the crash.  In fairness, no one is at their best after getting into a crash.  But parts of his video highlight the importance of trying to stay cool following a collision.  The fact that he created and posted the video for all to see is much appreciated as it may serve as a device for educating drivers, passengers and cyclists about how to avoid such an incident and what to do afterwards.

Tuesday, September 9, 2014

Illinois Municipalities May Be Held Responsible Where Snow Removal Forces Cyclists and Pedestrians Into The Street

Courtesy TheWashCycle
Illinois municipalities may be held liable for injuries to pedestrians and bicyclists forced into the street by snow piled onto sidewalks and bike lanes by city plows, according to the Illinois Appellate Court.  The ruling in Pattullo-Banks v. The City of Park Ridge, 2104 Ill App (1st) 132852 was issued on September 4th and overturned an order entered by Cook County Judge Lynn Egan dismissing the plaintiff's lawsuit against the city.

In her lawsuit, Lorraine Pattullo-Banks alleged that as she walked on a sidewalk along Touhy Avenue in Park Ridge, Illinois she encountered a pile  of snow and ice that obstructed her path.  Her claim alleged that city snow plows created the pile when they moved snow which had accumulated on the street onto the sidewalk.  In order to reach her destination she had to walk into the street, at a place where there was no crosswalk, and was struck by a car.  Her lawsuit against the city of Park Ridge alleged that in creating the sidewalk obstruction the municipality violated the duty it owed to her and others to maintain its property in a reasonably safe condition.  The municipality sought dismissal of the lawsuit under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act which provides that local municipalities only owe a duty to intended and permitted users to keep its property reasonably safe.  Ms. Pattullo-Banks was struck and injured in the street, outside of a crosswalk, a place that is not intended for use by pedestrians.  It is well established in Illinois that pedestrians are not intended users of the street outside of a crosswalk.  But, Ms. Pattullo-Banks argued, the dangerous condition of which she complained was not in the street but on the sidewalk, certainly a place intended for use by pedestrians.  Given that context Park Ridge should not be able to avail itself of the protections of the Tort Immunity Act.  The appellate court agree with her and reinstated her case.  In so doing the Court stated:
[Ms.] Pattullo-Banks' status as an intended or permitted user -- and whether immunity applies -- must be determined based on the property where [the] alleged breach of duty occurred (the sidewalk), not the property where the injury occurred (the street), and not the mechanism of injury (i.e., whether she was struck by an automobile or tripped on a defect).
It is important to note that the Court did not rule on whether the city of Park Ridge acted negligently in creating the obstruction. It merely held that the plaintiff, Ms. Pattullo-Banks, had a right to have a jury consider that issue.  Park Ridge was not entitled to have the case dismissed before a jury could consider the facts.

The implications of this ruling are significant.  Where a municipality in Illinois clears snow in the street at the expense of sidewalk users, forcing them to face danger by entering the roadway instead, it may be held liable where injury results.  Also, while the Pattullo-Banks case involved a pedestrian, there is no reason to believe that the Court's reasoning would not also apply to a bicyclist. For example, a municipality may be held liable where a cyclist is injured after being forced to exit a bike lane and enter the street due to the piling of snow by city plows clearing way for motor vehicle traffic.  Last winter, a particularly snowy one, the City of Chicago frequently moved snow from Kinzie Street into the bike lane near the Merchandise Mart often forcing cyclists out of the lane and into the street.

Municipalities in Illinois are now on notice that snow removal is not for motor vehicles, but for all people.  If they favor cars and trucks at the expense of pedestrians and cyclists they may be held responsible where harm results. 

Wednesday, August 20, 2014

Driver Who Blamed Navi System For Crash With Cyclist Agrees To Settlement

A driver who blamed her navigation system for causing a collision with a Chicago bicyclist has agreed to settle the lawsuit filed against her.

Our law firm was retained by the 34 year old female cyclist who was struck by the driver in December, 2012.  Our client was leaving her office building in the 300 block of South Jefferson Street when she was hit hard by the driver of a 2008 Honda Odyssey minivan traveling the wrong way down the one way street. The impact was strong enough to lift her off of her bike, spinning her 360 degrees, before dumping her onto the pavement.  She was taken from the scene to Northwestern Memorial Hospital in an ambulance.  Though fractures were ruled out, she was left with a painful back and hip injury that required eight months of physical therapy.

The motorist was ticketed by Chicago police at the scene.  We accompanied the bicyclist to the traffic citation hearing.  With the cyclist ready to testify against her, the driver plead guilty to driving the wrong way down a one way.  However, when it came time to compensate the bicyclist for injuries that necessitated nearly $25,000 in medical bills, the driver and her insurance company, Farmers, initially refused to do the right thing.  I was told by a Farmers representative that they did not feel the impact was very hard and, in any event, he felt that the Rehabilitation Institute of Chicago, where she received much of her physical therapy, had charged too much.  We filed a lawsuit.  During her deposition, the driver was less than conciliatory.  She claimed that at before the crash she was driving her minivan from a Target store toward her home in Chicago's Little Italy neighborhood when she become unsure of where she was going.  Her six year old son was with her in the vehicle.  Despite living in the city for many years, she said that she was not familiar with the Greektown neighborhood, about a mile from her home.  She decided to rely on her satellite navigation system to plot her route.  As she drove east on West Jackson Boulevard, the system allegedly instructed her to turn right on Jefferson and head south.  She did so, not realizing that South Jefferson Street was a north only roadway until she hit the bicyclist who had just pulled from the curb.  Though she admitted to not braking before impact and to traveling at at least 10 miles per hour at the time of the collision, she also claimed that the contact with the cyclist was minimal.

We continued to aggressively press the case against the driver, subpoenaing several witnesses who would testify regarding the severity of the impact.  Eventually, Farmers substantially increased its settlement offer and the case resolved for a fair sum.

This was a distracted driving case.  Satellite navigation is awesome, until it isn't.  Motorists using these devices are reminded not to follow them blindly.  Had the driver in this case looked around before turning onto Jefferson she would have seen a road sign that indicated that she was not permitted to drive south.  The other lesson to be taken from this case is that insurance companies often will not voluntarily provide fair compensation.  Despite its protest regarding the therapy bills from RIC, there was nothing at all unusual about the rates it charged.  In any event, it certainly was not our client's fault that RIC billed what it did.  The bills were what they were.  She was just trying to get the treatment she needed to regain her good health.

Tuesday, August 5, 2014

A Proposal For Revising Illinois Jury Instructions In Bicycle & Pedestrian Injury Cases

Is it reasonable for the law to require all roadway users to use the same amount of caution? Should pedestrians and bicyclists be required to use as much caution on the road as motorists?  For a very long time, California has said "no."  Illinois should follow suit.

As in Illinois, Californians using the road are required to use ordinary or reasonable care for their own safety as well as for the safety of others.  "Ordinary care" is generally thought of as the sort of care used by the reasonably prudent person.  This is the sort of care that would be employed by a regular hypothetical dude who is neither hyper-safety conscious nor particularly careless.  The facts and circumstances in which the events took place are considered, here and in California, when determining whether ordinary care was indeed used.  For example, ordinary care while driving a car in icy conditions will require a different amount of caution than will driving in dry conditions.  In this context, California has taken a very pragmatic approach when it comes to instructing jurors regarding the duties of care for pedestrians and drivers. California courts are explicit when guiding jurors.  They are instructed as follows:
The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians.  While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.
California Jury Instruction 710.  (Emphasis is mine).

Personal injury cases in Illinois are generally decided by 12 regular people.  A victim of injury (the plaintiff) alleges that one or more defendants (whether a person or corporation, partnership, etc.) acted badly thereby causing the harm.  The "badness" of the conduct, or lack of it, is determined by the members of the jury based on what the law is.  If the jurors agree that under the law the defendant(s) acted badly then they must determine how much money will help compensate the victim for his or her harms and losses. It is a huge, and sometimes taxing job.  Juries make these determinations by listening to the evidence presented by all sides, then determining whether the defendant's injury causing conduct violated the law.  If so, the injury victim prevails and should be compensated.

It is natural for jurors to feel intimidated by this task.  It is sometimes difficult to determine what really happened among competing versions of events.  Further, how are they to know what the law is?  Jurors are not trained in the law.  Frankly, the lawyers on each side of the case are often not much help in this regard. They are advocates for their respective clients.  How can they be trusted to accurately tell the jurors what the law says?  This is were jury instructions come in.

At the end of the case, after all sides have made their closing arguments, the judge reads jurors a set of written instructions telling them what the relevant law is.  The instructions are just that; they guide jurors in how they are to set about deciding the case and rendering a decision.  The content of the instructions to be read to the jurors is generally argued by the various sides in the litigation to the judge outside of the jury's presence.  The judge considers the arguments regarding how the jury should be instructed then renders a decision.  He or she then reads the chosen instructions to the jury.  The jury returns to their room for deliberation, using the instructions they have just heard as a guide for rendering a decision.

Adopting California jury instruction 710 in Illinois would greatly assist juries determining fault in cases involving drivers, pedestrians, bicyclists and other vulnerable roadway users.  What I am proposing, to be clear, is not a change in the law; but clearer, better guidance to jurors.  Authority for the use of the 710 instruction comes from the Supreme Court of California in Cucinella v. Weston Biscuit Company, 42 Cal.2d 71 (1954).  In that matter the court noted that "the elements of conduct entering into ordinary care or caution will vary and must be related to the particular circumstances involved, including the character of the act being performed."  Taking that basic principle into account the Court stated that juries, when considering the degree of caution to be employed by various roadway users, should be instructed that
[T]he elements of action constituting conduct which qualifies as ordinary care are those commensurable with the responsibility involved and depend on upon the character of the instrumentality being used or the nature of the act which is being performed, all as related to the surrounding circumstances.
The court held that because cars are capable for causing so much potential harm, drivers should be required to use greater caution then pedestrians.  The court approved of two jury instructions which stated, in part:
While it is the duty of both the driver of a motor vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not require necessarily the same amount of caution from each.  The driver of a motor vehicle, when ordinarily careful, will be alertly conscious of the fact that he is in charge of a machine capable of projecting into serious consequences any negligence of his own.
* * * * * 
To put the matter in another way, the amount of caution required by the law increases as does the danger that reasonably should be apprehended.
Just like icy pavement poses a greater threat of harm to drivers, motor vehicles pose a greater risk of harm than do other roadway users.  Illinois juries should be explicitly instructed that they may take this intuitive truth into account when a vulnerable road user has been harmed by a driver.  The California instruction only references pedestrians, and the Cucinella decision arose from a crash involving a pedestrian and a motor vehicle.  However, California bicycle attorney, and law professor at the University of San Diego Law School, Thomas Penfield, (who made me aware of the California instruction) has noted that "the rational should apply to bicyclists as well."  Like pedestrians, bicyclists are far less capable of potential harm than are drivers.  The level of caution that bicyclists should be accountable to use should therefore be less than for drivers.  Some will undoubtedly misconstrue this.  To be clear, bicyclists own a duty of reasonable care to themselves and even more vulnerable road users like pedestrians.  But the amount of caution required from drivers and cyclists should not be the same and jurors should be instructed as such.  The harm causing potential of their chosen vehicles is vastly different.

Such an instruction would be particularly useful in certain intersection crash cases.  We see many cases in which a bicyclist is "t-boned" by a driver who has timed a traffic signal which changed as the cyclist made his or her way through the intersection.  In Chicago at least, yellow lights last a mere three seconds.  At many intersections, a cyclist (and certainly a pedestrian) may enter an intersection on a green, only to see the light change from yellow to red before making it to the other side.  It happens a lot.  On plenty of occasions drivers see green lights like bulls see red and charge through intersections without looking for cyclists already proceeding across.  But a driver's duty is not merely to see green, but to see all there is to be seen, including bicyclists and pedestrians.  Where a driver has failed to look and causes harm, a jury considering the matter would be aided by an instruction that reminds that driving a vehicle that has the potential to inflict significant injury requires the use of great caution.

Tuesday, July 22, 2014

Joining The Tribe. . .

Illinois Bicycle Accident LawyerFor many years I worked with a much older attorney who used to talk about the strength of numbers.  The way he used to do it was amusing.  He would describe a group of heavily armed soldiers in the old west peering out from the turrets of their high walled fort.  They felt safe because they were big, firmly entrenched, and well supported.  "If," he would say, "One of those soldiers peered over the wall and saw a single Indian glaring menacingly in his direction he would just think, Well, to hell with you." The old attorney would continue, "But, if the soldier looked across the way and saw a large number of Indians, organized and preparing to attack, well, then he knew he had a problem."

Our law firm is proud to announce that we have joined a tribe (of sorts) of attorneys committed to representing bicyclists nationwide, Bike Law USA.  Jim Freeman, myself and our committed staff have always been committed to representing bicyclists throughout Illinois. Now we will continue to do it with the support of a nationwide network of bicycle accident attorneys.  Mind you, Bike Law is no internet marketing gimmick.  We wouldn't bother with it if it was.  Bike Law is the brainchild of long time South Carolina bicycle attorney, Peter Wilborn, who has represented hundreds of bicyclists injured by motorists, dangerous road conditions and unsafe products.  He is a former bike racer and present bike enthusiast and commuter.  He is one of us.  He founded Bike Law as a means of bringing together lawyers committed to working with cyclists to unite in strength, to form a collective to fight for the rights of bicyclists.

Bike Law is also Ann Groninger in North Carolina, Amy Benner in Tennessee, Bryan Waldman in Michigan, Vance Preman in Missouri and Kansas, Charlie Thomas in Mississippi, Louisiana and Texas, Jason Crawford and Brian Weiss in Colorado, Jackie Carmichael in Utah and former U.S. Olympic cyclist, Bob Mionske in Oregon.   Each is a lawyer fighting for cyclists.

Each Bike Law attorney does more than just represent injured bicyclists.  They write about cycling and the law, and work to educate cyclists and motorists alike about making the road safe for all users.  Bob Mionske is the author of Bicycling & The Law, the go to book providing an overview of what the law is and how it has developed.  Freeman Kevenides Law is honored to be a part of this esteemed and committed group.

Thursday, July 17, 2014

Powerful Video Encourages Road Users To Stay Calm and Share The Road

Recently, a journalist contacted me about a story he was writing about the (seemingly) increased vitriol between motorists and cyclists.  We spoke for a while about the matter, covering several recent incidents. The Craigslist letter.  The Washington Post anti-bicycle screed.  But the question he kept coming back with was, Why?  The only sensible answer I found that I good give was not much of an answer at all, I don't know.


We can speculate about numerous factors and perceptions that play into this war of sorts:  The infrastructure sucks.  Drivers are selfish, air polluting assholes.  Cyclists are entitled, law breaking dickweeds.  We can ponder whether there is even really a war between cyclists and drivers at all.  Many of us drive and bike and do not define ourselves by the mode of transportation we choose to utilize at a particular moment.  But the bottom line is that humans like to be able to travel safely, unmolested and unslowed.  When something, or someone, gets in the way of our ability to do so tempers flare.  It is probably not a biker thing or a driver thing.  It is a people thing.


Perhaps recognizing this Transport For London has created a PSA video that holds up a mirror to all road users, pointing out the madness that may ensue when tempers flair.  It is well done.  Check it out.


Monday, July 7, 2014

Visitation Tomorrow For 28 Year Old Chicago Cyclist Killed By Truck Driver

Barbara Eno,
courtesy DNAInfo
Visitation will be held on Tuesday for Barbara Eno, a 28 year old Chicago bicyclist who was killed on July 3rd by a right turning cement truck.  Her funeral will be held on Wednesday.  For information on times and location, please click here.

Barbara was riding her bike northbound on Cicero Avenue when the driver of a Kenworth W900 truck struck her as he turned from northbound Cicero Avenue onto eastbound Belmont Avenue in Chicago's, Portage Park neighborhood, according to the Chicago Sun-Times.  The collision occurred at around 10:00 a.m. as Barbara was riding along the right side of Cicero Avenue.  The driver apparently never saw the cyclist to his right as he made his turn.  He reportedly brought his truck to a halt after nearby witnesses screamed at him to stop, the Sun-Times reported.

This type of collision between a motor vehicle and bicyclist occurs with disturbing frequency.  It is so common that it has a name, "right-hook."  Because cyclists are required by law to travel along the right side of the roadway, they may find themselves cut off by a careless driver traveling in the same direction who attempt to turn right without looking for bicycle traffic.  All drivers own a duty of reasonable care to all roadway users, including people on bicycles.  For the right turning driver this duty requires:  (1)  Using a turn signal; (2)  Turning right from the right lane; and (3)  Looking right for bikes before starting to turn.  Click here to read more about avoiding right hook collisions.  There are red light and OEMC cameras located at the intersection of Cicero and Belmont so it is likely that investigators will be able to determine the cause of the crash.  As of July 4th, the 51 year old driver had not be arrested or issued a traffic citation, but right hook collisions in our experience are often caused by a driver's failure to look for bicycle traffic before turning.

Collisions between large trucks and cyclists are far too common, so much so that some cities are looking into how to provide increased protection to cyclists.  By the end of 2014, London will prohibit large trucks - those over 3.5 tons - from operating in the city without, "side guards to protect cyclists from being dragged under wheels, as well as mirrors to improve a driver's view of cyclists and pedestrians," according to The Guardian.  The measure was proposed in the wake of the deaths of several cyclists killed in London after being swept under the wheels of large trucks.  The measure will be enforced by on street checks and via closed circuit video cameras, The Guardian reports. There will reportedly be large fines for non-compliance.

There has been some interest in the United States for similar measures.  In 2008, the City of Portland adopted a resolution recommending that large trucks be fitted with side guards.  While not binding policy, at least some trucks operating in the City, including city owned vehicles, were outfitted with the guards.  Also, last year the U.S. National Transportation Safety Board (NTSB), published safety recommendations that included truck side guards.  It called for the development of,
[P]erformance standards for side underride protection systems for single-unit trucks with gross vehicle weight ratings over 10,000 pounds.
Once the performance standards . . . have been developed, require newly manufactured single-unit trucks with gross vehicle weight ratings over 10,000 pounds to be equipped with side underride protection systems meeting the performance standards.
The NTSB also recommended the installation of "visibility enhancement systems to compensate for blind spots" in order to protect bicyclists and pedestrians. The recommendations came on the heels of a NTSB safety study, Crashes Involving Single-Unit Trucks that Resulted in Injuries and Deathswhich found injuries and fatalities to cyclists caused by turning heavy trucks a significant hazard.

Since 1998, large trucks in the United States have been required to have rear impact guards to protect motorists in the event of a rear end collision.  While some have questioned the overall effectiveness of the rear guards, there have been a reported reduction in fatalities since implementation of the requirement.  While it is not yet clear whether a side guard could have prevent Barbara Eno's death, it is the time to take similar measures to protect bicyclists by requiring large trucks to be outfitted with side guards.

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