Friday, October 30, 2009

Take The Lane, Please

On Tuesday I wrote about how Illinois law permits bicyclists to "take the lane" when it is reasonable and necessary for them to do so. Today I came across a story in USA Today about how the city of Long Beach, California is encouraging cyclists to take the lane and ride with and even in front of motorized traffic. Check it out.
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Tuesday, October 27, 2009

Ride To The Right, Except When You Can't

Illinois bicyclists must ride along the right side of the roadway, except when they can't. Let me explain: If you are able to travel at the same speed as motorized traffic, then you may travel in the same lane. However, if you cannot the law requires that you ride "as close as practicable to the right-hand curb or edge of the roadway." 625 ILCS 5/11-1505. But anyone with experience riding in the city knows that doing so is rarely easy. Torn-up pavement, stopped cars, debris, CTA buses, pedestrians and man-eating crocodiles often inhabit the "right-hand curb or edge of the roadway" making cycling scary and dangerous. What is the cyclist permitted to do when faced with such hazards? Section 11-1505 of the Motor Vehicle Code contains an exception. It states that you must ride to the right "except. . . When reasonably necessary to avoid conditions [like] fixed or moving objects, parked or moving vehicles, bicycles, motorized pedal cycles, pedestrians, animals, surface hazards, or substandard width lanes that make it unsafe to continue along the right-hand curb or edge." (emphasis added) What this means in plain language is that if an object like, say, a tree branch or a bus sits in your path on the right side of the road, you may move to your left, taking the traffic lane, in order to proceed around the object. You must then return to the right side of the road.

Bicyclists may "take the lane" when it is reasonable to do so. City streets do not exist for motorized traffic, but for all traffic. That is the law. That fact noted, I must caution that taking the lane does not mean darting into traffic, not looking before merging left. The Municipal Code of Chicago, and good sense, states, "Every person operating a bicycle upon a roadway shall ride as near as practicable to the right-hand side of the roadway, exercising due care when passing a standing vehicle or one proceeding in the same same direction and at all times giving the right-of-way to other moving vehicles." 9-52-040(c) If there is a motor vehicle coming up on your left that vehicle will have the right of way and the cyclist must yield. However, the motorist owes the cyclist a duty of care as well. Chicago's Municipal Code states, "The operator of a motor vehicle overtaking a bicycle or individual proceeding in the same direction on a highway shall leave a safe distance, but not less than 3 feet, when passing the bicycle or individual and shall maintain that distance until safely past the overtaken bicycle or individual." 9-36-010(c) When a bicyclist moves to his or her left to go around an object along the right side of the roadway cars and trucks may not crowd or buzz the cyclist, but must give three feet of space at minimum.
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Friday, October 23, 2009

Memorial Ride Planned For Fallen Cyclist

A memorial ride for Liza Whitacre is planned for Sunday, October 25, 2009 at 7:00 p.m. The ride will start at Metropolis Coffee (1039 W Granville Ave), where Liza worked, and will follow her route to the place of her death, Wellington and Damen by Hamlin Park in Roscoe Village. All are welcome.

In Memory Of A Fallen Cyclist

Here is the Chicago Tribune's remembrance of Liza Whitacre:

Woman killed on bicycle loved freedom of riding
liza_whitacrecap275.jpg
Loyola University student Liza Whitacre loved life -- especially one where she could roam freely through Chicago's streets on a bicycle.

But a freak accident ended her life on Wednesday as she and her roommate rode their bikes through the Lakeview neighborhood.

Whitacre, of the 4900 block of North Winthrop Avenue, fell from her bike, landed underneath a truck and was run over by the vehicle outside Hamlin Park on Damen and Wellington Avenues. Police said she was trying to pass between the truck and a CTA bus when she fell off her bike.

Chicago police today said no citations would likely be issued against the driver of the truck. After the accident at 12:30 p.m. Wednesday, Officer John Mirabelli, a police spokesman said, "The truck driver was apparently unaware that the woman had fallen underneath."

Whitacre was pronounced dead at Advocate Illinois Masonic Medical Center.

"She rode her bike everywhere. She loved riding her bike," said Tony Dreyfuss, Whitacre's boss at the Metropolis Coffee Company, 1039 W. Granville Ave., where she worked.

Dreyfuss said Whitacre participated in Critical Mass, a monthly biking event that draws up to 3,000 cyclists who ride through Chicago's streets. But Dreyfuss, who has ridden with Whitacre, described her as a careful rider who wouldn't dart into traffic or travel in between moving cars.

Dreyfuss said Whitacre planned on making coffee her career. Whitacre worked as a retail and wholesale trainer at the shop, training other employees how to make specialty coffee drinks and promoting the shop's products to customers, he said.

The coffee shop was closed today because of Whitacre's death and expected to reopen Friday morning, Dreyfuss said.

Whitacre's family members said she was fluent in French, studying the language at Loyola University. She also enjoyed knitting, sewing and cooking.

Whitacre's younger sister, Lauren Whitacre, said she and Liza were inseparable while growing up.

Lauren, 18, said she and her sister always sat next to one another at birthday parties. As children when they'd ride bikes together, Lauren said, Liza would always hide in bushes and pop out from them just to scare her.

"I don't think we ever didn't do anything together," said Lauren, a student at Columbia College, who jokingly described her big sister as "bossy."

Liza Whitacre was born in Phoenix, Ariz., but spent her formative years in the northwest suburb of Palatine, where she attended Fremd High School.

Other survivors include Liza's mother, Cecilia Whitacre, her father, David Whitacre, a younger brother, Max, two grandmothers, a grandfather, two uncles and an aunt.

A wake is scheduled for Friday from 4:30 p.m. to 7 p.m. at Loyola's Madonna della Strada Chapel, 6525 N. Sheridan Rd. Her funeral service is scheduled for 11 a.m. Saturday at Willow Creek Community Church, 67 E. Algonquin Rd., South Barrington.

--Jeremy Gorner

Wednesday, October 21, 2009

Twenty-three Year Old Killed Riding Her Bicycle On Chicago's North Side

A 23 year old woman was struck by a motor vehicle and killed while riding her bicycle near Damen and Wellington on the North Side of Chicago today, according to The Chicago Breaking News Center. The incident occurred at around 12:30 p.m.

Here is an additional link with a bit more information on this tragic incident.

How To Report Bike Lane Hazards To CDOT

When a bicyclist sustains injury due to a public roadway hazard he or she may seek compensation from the local governmental entity responsible for maintaining the road. There are, however, significant hurdles that must be overcome to do so successfully as I described in an earlier post. One of those hurdles is notice. An attorney representing an injured cyclist will need to prove that the city, town, village or other governmental entity responsible for the road knew or should have known about the hazard. During litigation the lawyer will make a request to the responsible entity seeking disclosure of any and all documents which may have put it on notice of the hazard, such as citizen complaints, and hope that if any exist they will be turned over. If the government responds that no such documents exist then the attorney must prove that the hazard was significant enough and existed for such a period of time that the government should have known about it, and taken steps to correct it. This is called "constructive notice". Having to prove constructive notice can be challenging. How long is so long that the government should be deemed to have been aware? Having documented proof that the government had actual notice of a particular road hazard yet failed to repair it is certainly much better.

Chicago bicyclists should report roadway hazards to the city, especially when the hazard, e.g. a pothole or sinkhole, is present in a bike lane. I recently inquired via email with the Chicago Department of Transportation (CDOT) as to how residents may report hazards in the city's bike lanes. There are two ways to do so, by calling Chicago's help line at 311 or online at www.servicerequest.cityofchicago.org. Here is the email thread:

Two questions:

1) To whom should I report hazards or dangerous conditions, i.e. sink holes, debris, etc., in bike lanes, paths and bike ways in the City of Chicago?

2) How should I make such a report?

Thanks.
--
Brendan Kevenides

--

Dear Mr. Kevenides ,

Thank you for your letter. We appreciate your dedication to bicycling and your enthusiasm for improved bicycling facilities in the City of Chicago.

One if the quickest and most effective ways to report pavement damage is to call 311 and input the information yourself directly into the system and onto the maintenance list. You can also do this online at https://servicerequest.cityofchicago.org.

Establishing and maintaining quality bikeways is consistent with Mayor Daley’s goals of creating safe road conditions for all users and encouraging bicycling in Chicago. Your input encourages our implementation of these goals.

Sincerely,

Joshua Koonce

Bikeways Planning Assistant

Chicago Department of Transportation

Chicago Bike Program

30 N. La Salle Street, Suite 500

Chicago, IL 60602


It would seem that the online reporting option creates a clear record of a complaint about a hazard. After submitting a report you will receive a message that states:

Service Request Entry Complete!

Thank you for reporting your city service needs. You will receive a confirmation e-mail with your service request tracking number and a link to the status query page once your service request has been added to the primary service request tracking system. . .


There is a "tracking system"! This is significant because it means that the injured cyclist's attorney can make a request to CDOT for any and all electronic "service requests" within the "primary service request tracking system" to obtain proof the city knew of a particular hazard. Perhaps CDOT creates written documentation of service requests that are made via telephone. But it is clear that there is typewritten documentation of such requests that are made online. Having typed complaints about a particular hazard that the city failed to respond to would be a tremendous help to the injured bicyclist and his or her attorney. When making an online service request please be as specific as possible. For example, if you are reporting a pothole in a bike lane, when the online form asks, "What size and shape is the pothole?" you should respond with something like, "Pothole is in the bike lane in front of ABC store, is quite large and presents a hazard to bicyclists." With this kind of description who could argue credibly that the city was not on notice of the hazard and the danger it posed to cyclists?

One thing was not made clear to me from my inquiry with CDOT: For how long service requests are kept in the "system". Does CDOT keep such requests for 30 days, 6 months, 7 years? One would hope that requests are kept until such time as the hazard is repaired or corrected, but who knows. In any big organization data, information, documents can just disappear by accident or not. In light of that reality I propose that if you submit an online service request to CDOT regarding a bicycling hazard that you send a copy of the confirmation email you will receive following your request to The Chicago Bicycle Advocate at bhk@kenneallylaw.com. In that way we will have a data source to look to when clients come to us with a case arising out of a roadway hazard. Working together we can make Chicago safer for bicyclists.
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Tuesday, October 20, 2009

Join The Chicago Bicycle Advocate At Facebook.com

If you are a Facebook user join The Chicago Bicycle Advocate group at Facebook.com.

Monday, October 19, 2009

Why Bicyclists Tend To Ignore Motor Vehicle Laws

On Friday Slate.com posted an interesting and informative article about why bicyclists tend not to obey traffic laws meant for motor vehicles, especially when it comes to stop signs. Illinois law requires bicyclists to come to a complete and full stop at all traffic control devices and signs. As I have written before, however, that law is impractical. Bicyclists will not halt at stop signs and red lights. Instead, they will read traffic conditions and act accordingly. As a cyclist approaches a stop sign he or she will slow, look left, right and straight for vehicles then respond as circumstances dictate. That, my friends, is the way it is and the way it will be so long as the majority of our cities lack infrastructure that facilitates bicycle traffic in a serious way.
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Friday, October 16, 2009

What To Do After A Bicycle Accident

You've crashed; now what? Many times, the cyclist who has just been in an accident cannot quite process what has happened. You may find yourself asking, Did that just happen? Am I hurt? What should I do? The first thing you should do is remove yourself from any additional danger. Get out of the road, move your bike to safety, sit down, try to control your breathing and calm down. You may literally be shaking, your breathing maybe rapid and your heart may feel like will thump right out of your chest. That is pretty normal after experiencing even minor trauma. After a short time you should do the following:

Notify - Pull out your mobile phone (you'd be nuts to go biking without one), dial 911 and request both an ambulance and the police. Do this even if you are not sure if you are hurt or think that you have only minor injuries. Right now your adrenalin is pumping and your body maybe masking symptoms of a serious injury. Play it safe. Don't forget to tell the 911 operator where you are to the best of your ability and provide your mobile phone number. If the paramedics have a hard time locating you, the dispatcher may call you back. Do not turn away medical care offered by paramedics and let them take you to the hospital. If your injuries turn out to be minor, you won't be there too long. If the police ask you if you wish to make a report your answer should be an emphatic "yes." If your injuries are severe and you cannot make a report at the scene, go to the police department and make a report as soon as you are able to do so.

Gather - After gathering yourself, and your bike, it's time to gather as much information at the scene as possible. While you have your mobile phone out, click a few photos of whatever it was that caused your crash, e.g. the driver's vehicle and license plate, the road hazard, the broken bicycle component, etc. If there are people around you, ask if anyone saw the accident. If so, get their name and telephone number. If you were struck by a motor vehicle ask the driver for his or her name, address and telephone number. Ask to see a driver's license and insurance card.

Shortly after being involved in bicycle accident you may be contacted by a representative of an insurance company who will ask you to give a recorded statement. Questioning will focus on how the accident happened and the nature and extent of your injuries. This is most likely to occur where you have been hit by a motor vehicle. You may even be contacted, in person or via telephone, while you are still in the hospital. Do not give a statement until you have sought legal advice. Why? Because you need time to recover physically and collect your thoughts before making a statement to which you will be bound later. You may not at that point even fully appreciate the full extend of your injuries or the care and treatment that you will need. There is no good reason not to wait before giving a statement. The driver's insurance company may even make a quick offer to settle your claim and ask that you, in return, sign a document releasing its insured from further liability. Do not do it without seeking legal advice. Again, there is no good reason not to wait until after you can fully appreciate what happened and what the repercussions are or will be. The driver's insurer will want to take it fast to resolve the claim quickly for as little as possible. You take it slow.

Talk to a lawyer - Speak with an attorney even if you believe your injuries are minor. It should be noted that following a cycling accident you may not be best served by seeking legal advice from Uncle Bernie who handles bankruptcy cases. Seek advice from a personal injury lawyer, preferably one with experience handling bicycle accident cases. The initial consultation with an attorney should not cost anything. If the attorney decides to take your case, he or she will -- or should -- only receive a fee when and if the case resolves in your favor. This is called a contingency fee agreement. A lawyer is most likely to agree to represent you when your injuries are severe, with significant medical bills. Again though, call a lawyer even if your injuries seem minor. When I've received such calls I spend time offering guidance on how I think the victim should proceed, then recommend that he or she negotiate with the driver's insurer on their own. There may be no point in an attorney taking a piece of the pie in a claim that can be resolved quickly and easily for a relatively small sum of money.

Compensation - Many people ask me what kind of compensation they are entitled to following a bicycle accident. The money "damages" to which you will be entitled include reimbursement for:
  • Medical bills;
  • Lost wages;
  • Cost to have your bicycle repaired;
  • Pain and suffering (both past and future);
  • Loss of a normal life; and
  • Disfigurement.
If your injuries are permanent and profound, or you are killed, your family, i.e. your spouse and children, are entitled to compensation for:
  • Loss of financial support that you would have provided to them; and
  • Loss of consortium/society; that is their loss of the love, guidance and services you would have provided to them.
Ninety-nine times out of a hundred, monetary compensation is paid by the at fault person's, or entity's, insurer rather than out-of-pocket.

Litigation - Sometimes it is necessary to file a lawsuit in order to wrest fair compensation from the at fault person's or entity's insurance company. Generally, this occurs where the insurer believes that its insured is not at fault based on the facts, or where there is strong disagreement over the amount of compensation that the injured bicyclist should receive. It can also occur where the at fault person has "substandard insurance," coverage from a crumby insurance company that tends to litigant every case in order to delay payment for as long as possible. Depending upon the type of accident at issue, the attorney will take differing steps in his or her investigation. If the accident involved a motor vehicle, an accident reconstruction expert may be retained. If the crash was caused by a defect or hazard in the roadway, a different sort of expert may be consulted. In a product liability case, involving failure of a bicycle component, an engineer or metallurgist will probably need to be retained. Most bicycle accident cases, however, do not require retention of experts. A thorough and aggressive investigation of the facts by the law firm will suffice. In all cases, the cyclist's medical bills and records will be obtained from care providers. After the lawsuit is drafted, filed and served on the defendant(s), your attorney and the defendant's attorney will trade written questionnaires called interrogatories, request production of relevant documents, photos and other materials, and interview all those involved in the matter, including parties, witnesses, physicians and experts, in a deposition. After that, the matter will proceed to trial if a settlement agreement cannot be reached. The vast majority of cases filed settle without going to trial, but trials certainly do occur. It is important to make sure you hire an experienced trial lawyer just in case.

Criminal prosecution - In bicycle accidents involving a motor vehicle, the driver will often receive a traffic citation and will need to appear in court to defend himself or herself. What happens in the traffic or criminal case will have little if any bearing on what occurs in a civil lawsuit. In fact, I have successfully resolved bicycle accident personal injury cases in which the at fault driver was found not guilty of violating the motor vehicle code.

Every case is different and will be resolved on its specific facts. If you have any questions that have not been sufficiently answered in this post feel free to contact me directly or post a comment.

Wednesday, October 14, 2009

Increased Severity of Bicycling Injuries In The U.S.

An increase in bicycle commuters combined with a largely woeful biking infrastructure may be the cause of more severe bicycling injuries in the United States, according to findings presenting a the annual meeting of the American College of Surgeons in Chicago yesterday. Certainly the increased enthusiasm about bicycling in the U.S. is a positive for the general health of Americans and for the environment. The data is now in, though, which suggests that our infrastructure simply must become more bicycle friendly if the current rate of bicycle use is to be sustained.

A report about the findings can be found at Reuters.com with quotes from the lead study researcher.
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Safety Commission Orders Recall of Electra Bicycles and Schwalbe Tires

The U.S. Consumer Product Safety Commission today announced recalls of Schwalbe brand bicycle tires and Electra bicycles. The Commission recommended that consumers immediately stop using Schwalbe Ultremo R Bicycle Tires because tire layers could separate causing the inner tube to rupture. The tires were sold at bike stores and online between April and May 2009 for about $75. The Commission also recommended that consumers stop riding 2009 Electra bicycles with front trays or baskets. The company that makes these bikes has received fifteen reports of the front tray or basket coming loose and contacting the front tire during use, creating a fall hazard.
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Tuesday, October 13, 2009

A Website That Could Help You Ride Safer

With information we can avoid danger and affect positive change. As bicyclists who ride through the crowded city we rely on our skill and experience to get us from point to point safely. We also hope. We hope that drivers give us the three feet of space the law requires. We hope that drunk drivers stay far from us. We hope that a sink hole has not cropped up in the bike lane since we were last there. We hope that lady in the SUV on her cell phone with three kids trying her nerves from the backseat sees us. Hope is a good thing. But when my health and safety are on the line give me information over hope any day. Roadguardian.com provides cyclists with the means to report and receive information about danger spots so they can ride smarter and safer. I was made aware of this helpful site by a post last week at www.bikerumer.com. Roadguardian.com provides cyclists with information regarding:
  • Where have cyclists experienced close calls?
  • Where have cyclists been hit and injured?
  • Where have cyclists been killed?
  • Where have dogs chased cyclists?
  • Where are the pot holes located?
  • Where have cyclists been harassed by motorists?
At the moment the site has only two incidents listed in Chicago. For our city, the site is not yet a useful resource. But if enough bicyclists post incidents on the site it certainly can be. With accidents and incidents posted on the site perhaps trends will become clear and danger areas can be corrected or simply avoided. It is up to bicyclists to make this a useful tool. Let's get to work.
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Monday, October 12, 2009

In One City, A Proposal To Require Bicycle Licensing

In the online addition of Bicycling Magazine, Bob Mionske writes about an ongoing effort in Toronto to require bicyclists to be licensed and helmeted to use the roadway. Nobody tell the Daley Administration, which has never seen a new revenue source it didn't like. On a serious note, I could be persuaded that licensing bicyclists is a good idea if I could be assured that license fees would be used to fund a Copenhagen style biking infrastructure. That seems unlikely, though. Revenue raised by requiring bicycle licenses probably would not pay for much beyond that needed to set up and run the licensing program itself.

Thursday, October 8, 2009

Cyclist Injured Near Montrose and California

A bicyclist was injured on October 5th when he was struck by a car near Horner Park, just east of North California Avenue and West Montrose Avenue in Chicago. We have been retained to represent him in his claim against the negligent driver. Our client was riding his Trek road bike eastbound on West Montrose at the time of the collision. As he approached a driveway leading into Horner Park, riding along the right side of the street, he saw a silver car stopped in the westbound lane of Montrose angled as if waiting to turn into the driveway. Because the driver was stopped he fairly assumed that she saw him and was waiting for him to pass before making her turn. However, just as he reached the driveway the car darted into his lane and struck his bicycle, sending him flying forward onto the hood of her car. He was immediately groggy, having smacked his head. He also had pain shooting through his wrists which accepted much of the impact. Bizzarly, the driver exited her car and accused our client of being some how at fault for damaging the hood of her car. She then left the scene before police arrived without providing her name, address and insurance information. Luckily, there was a witness to the accident and the driver was later found.

Our client was treated after the incident at Swedish Covenant Hospital where he was diagnosed with two badly sprained wrists. The injury, for which he is forced to wear immobilizing splints, has understandably kept him from his job as an airport baggage handler. Our firm is taking this matter seriously and will aggressively pursue the at fault driver and make sure she is held accountable.
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Tuesday, October 6, 2009

A Pile Of Dirt, A Bicycle and A Duty of Care

For a kid there are few things more fun and exciting than a bicycle and a pile of dirt. It's messy, it's exciting and it's simple. The problem, however, is that it often presents a young child with some serious danger. Speaking from the experience of my much younger self, a pile of dirt offers a kid the chance to fly, the mound providing a ready-built ramp for aerial tricks and stunts. Unfortunately, the fun sometimes ends with broken bones, serious cuts and gashes, sprains and even head injuries. I remember an incident from my own childhood in which a friend and I created a ramp from a pile of dirt at the bottom of a steep street. I went barreling down the road, onto and over the dirt pile. I remember being terror-struck as I flew through the air and eyed a bunch of cinder blocks haphazardly strewn in my poorly anticipated landing zone. The impact against the hard blocks broke my leg.

What duty does the private landowner owe to children engaged in this sort of bicycling on his or her property? The answer boils down to foreseeability. In Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 886 N.E. 543 (5th Dist. 2008) an 8 year old boy was seriously injured while using a pile of dirt as a bike ramp in the parking lot of a privately owned playground that was open to the public. In response to the lawsuit filed by the boy's parents, the defendant landowner asserted that the case should be dismissed because the pile of dirt was an open and obvious danger that even an 8 year old could appreciate. If the child chose to risk launching himself through the air via the dirt mound, the landowner felt it should not be held responsible where injury resulted. The problem for the landowner, however, was that it knew ahead of the boy's accident that children were legally on its property, engaged in dirt jumping and that they were likely to get hurt while doing so. The appellate court noted that while the dirt was perhaps open and obvious, an 8 year old boy may not fully appreciate the danger of using it as a bicycle ramp. In any event, the Court stated that the ability of the boy to have recognized the danger was not the only issue in determining whether the landowner had a duty to correct or warn against the hazard. The Court stated, "In order to find that a landholder owes a duty to a child injured on its premises, a court must also find that (1) a dangerous condition exists on the property, (2) it is reasonably foreseeable that children would be present on the premises, and (3) the risk of harm to children outweighs the burden of removing the danger." Grant, 381 Ill.App.3d at 670. The Court found it damning to the landowner that the park's commissioner testified that he had seen children jumping their bikes on the dirt, had shooed them away because he recognized they could get hurt and observed them return to the mound with their bicycles despite his admonition. In light of that knowledge, the Court held that the danger to the boy was foreseeable and that the landowner, therefore, owed him a duty to remove the hazard, especially given the nominal cost involved in dismantling the pile by just spreading the dirt around.

In Grant, the boy was legally permitted to be on the property at the time he was injured. But what if he had been a trespasser? Again, knowledge is key. Given the facts presented in that case, the landowner still could have been held liable. The general rule in Illinois is that a landowner owes no duty of care to trespassers except to avoid purposefully injuring them. However, our courts have carved out a "frequent trespass exception" to this rule. "Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of its activities, where the landowner knows, or should know from the facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size." McKinnon v. Northeast Illinois Regional Commuter Railroad Corporation, 263 Ill.App.3d 774, 777, 635 N.E.2d 744 (1st Dist. 1994). A failure to object to trespassers coming on the land may be viewed as "tacit permission" for them to do so. The landowner may be liable to such "tolerated intruders" for injury "where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it." Id. at 778. The facts presented in Grant were that the landowner knew the boys continuously came onto its property specifically to jump their bikes on the pile of dirt. The park commissioner had seen them do so on more than one occasion. The commissioner had asked the boys to leave on one occasion, but on others he failed to do so. He testified that he saw the boys return to the pile with their bikes even after he asked them to leave. After the boy suffered his injury the dirt pile was spread out with little cost or effort. Pursuant to the "frequent trespass" exception, the landowner in Grant could have been held liable under these facts even if the injured boy had been a trespasser. The owner know the boys continuously entered a specific portion of its property to play on the dirt mound. Also, the cost of preventing the harm, i.e. by flattening the pile, was slight.

Children on their bicycles tend to be endlessly creative, and that's a good thing. Kids will always gravitate toward danger. As parents, we of course hope they will survive their natural inclinations for fun and adventure seeking. Landowners must recognize that they simply cannot turn a blind eye to children playing on their property. There is no need to be the angry neighbor who constantly yells at children to stay away. At the same time, if there is a dangerous condition on your property that you know children encounter you must take reasonable steps to correct the hazard.
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Thursday, October 1, 2009

Employers Should Be Liable For Punitive Damages When Employees Cause Serious Injury While Driving, Texting, Talking

By referring to distracted driving as a "deadly epidemic" on Wednesday, U.S. Transportation secretary Ray LaHood was hardly being controversial. Every year 1.2 million traffic crashes involve drivers not paying attention, according to the National Highway Safety Administration. Not surprisingly drivers' use of cell phones and computers for talking, texting and emailing is often the cause of such inattention. Drivers from virtually all walks of life are undoubtedly guilty of engaging in this dangerous behavior. A lengthy article in today's New York Times focuses on the extent to which employees attending to work related matters while driving, whether checking email, following up with a client or checking in with a dispatcher, contribute to this problem. The article provides some chilling accounts of the repercussions of doing so. On a positive note, however, it states that some large companies are starting to recognize the danger posed by their multitasking, distracted employees while on the road. In response, some are banning employees from using phones and computers while driving. The fear of litigation arising from injury or death caused by a distracted employee on a cell phone is a motivating factor behind such self-imposed bans.

Our state, and some cities and municipalities in Illinois, is keen to the dangers posed by distracted driving. Recently, Illinois imposed a ban on texting while driving. The City of Chicago presently requires cell phone users to use a hands free device while operating a vehicle. These laws, while welcome, are difficult to enforce. Also, the pressure that many employees, both white collar and blue, feel to respond to work emails, phone calls and text messages while on the road may be far more compelling than the remote risk of being ticketed for doing so. One way to compel employers to institute cell phone bans is to put them on notice that a failure to institute such a policy could hit them hard where it hurts, in the purse. We have reached a point where the dangers of driving while using a cell phone are so thoroughly documented and well understood that use of a cell phone while driving should support a cause of action for willful and wanton misconduct . An employee who causes an accident due to inattention from cell phone use that results in serious injury or death should result in the employer being held liable to pay very substantial punitive damages to the victim or the victim's family. In my opinion, existing Illinois law supports this proposition.

Negligent conduct is different from that which rises to the level of being "willful and wanton". Negligence is a failure to act as a reasonable person would under similar circumstances. A victim harmed by conduct that is "merely" negligent may not collect punitive damages from a defendant. On the other hand, conduct is willful and wanton where it "shows an utter indifference to or conscious disregard for the safety of others." I.P.I. 14.01. "A defendant is willful and wanton when he has actual or constructive knowledge that his acts, or his failure to act, create a high probability that others will incur serious physical harm, and the defendant nevertheless recklessly disregards this danger." McDermott v. Metropolitan Sanitary District, 240 Ill.App.3d 1, 28, 607 N.E.2d 1271 (1st Dist. 1992). It is well established in Illinois that an employer may be held liable for both the negligent and willful and wanton conduct of its employee where the employee was acting within the course and scope of his employment. "A willful and wanton cause of action based on a respondeat superior theory is similar to a negligence action, except that the level of the defendant's conduct is more than mere negligence, but less than intentional conduct. The allegations of a willful and wanton claim must set forth facts to establish that the employee, within the scope of his employment, acted with willful and wanton disregard, or conscious indifference towards" the injured person. Ledesma v. Cannonball, Inc., 182 Ill.app.3d 718, 726, 538 N.E.2d 655 (1st Dist. 1989). In plain language, where an employee is held to have acted recklessly, his employer is automatically held to have done so as well, so long as the employee was undertaking his ordinary duties and responsibilities in furtherance of his employer's business at the time. "Such a claim may . . . give rise to punitive damages." Id.

To the best of my knowledge, no Illinois court has considered whether cell phone or computer use while driving may be considered willful and wanton behavior. But the evidence now exists that could reasonably lead a jury to conclude that it is. Our own Illinois Secretary of State, Jesse White, recognizes that driving while operating a cell phone is reckless. According to a recent Chicago Sun-Times article, White, who spearheaded Illinois' new anti-texting law, said, "Who can drive while putting their thoughts together, hitting the right keys and sending a message? That's a formula for someone getting hurt of killed." Three years ago a group of University of Utah psychologists "published a study showing that motorists who talk on hand held or hands-free cellular phones are as impaired as drunken drivers." If driving while intoxicated demonstrates a "reckless disregard for the safety of others" (and who would argue otherwise), then surely driving while texting, talking on the phone or computing demonstrates the same measure of recklessness. Employers must explicitly communicate to their employees that they are not to operate cell phones or computers while driving. Hopefully, doing so will reduce the number of employees who do so and will cut the number of drivers, pedestrians and bicyclists killed and seriously injured each year by inattentive driving. Only when employers formally institute a policy banning cell phone use should they be able to escape liability for punitive damages where an employee using a cell phone for work a related purpose while driving causes serious harm.


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