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.

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.

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