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Friday, January 31, 2014

Chicago Police Officer Gets Law Wrong, Lawsuit To Be Filed For Injured Bicyclist

The Chicago police officer at the scene got it wrong.  As a result, a lawsuit will need to be filed on behalf of a bicyclist who was struck by a turning driver at the intersection of West Chicago Avenue and North Green Street.

The cyclist, Camilo Fero, 29, was riding his Fuji Classic east on Chicago at around 9:30 a.m. on September 24, 2013.  He was on his way to work at Better Bag, an environmental business that he owns located at 325 West Huron Street.  It was a clear, dry early fall morning.  When he reached the uncontrolled intersection of Green a motorist, westbound in a 2001 Chrysler Town & Country, made a left turn through a gap that opened up in traffic.  Mr. Ferro, helmeted and riding lawfully to the right of stopped eastbound traffic, was struck by the turning minivan.  An ambulance rushed him from the scene to Northwestern Memorial Hospital with injuries to his right knee, wrist and neck.  He is expected to recover from his injuries.

The incident was a classic "left cross," one of the most common types of crashes between cyclists and drivers in urban settings.  The law as to who owns the right of way between a driver and cyclist approaching from opposite directions in an intersection is quite clear.  Chicago Municipal Ordinance 9-16-020(e) states, 
The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to a bicycle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.
Also clear is the cyclist's proper position in the roadway.  Section 9-52-040 (c) states that a, "bicyclist upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as near as practicable and safe to the right-hand side of the roadway."  Also, 9-52-040(d) states, "Any bicyclist upon a roadway is permitted to pass on the right side of a slower-moving or standing vehicle..."

The eastbound cyclist in this matter was riding on the right side of Chicago Avenue, passing slower moving motor vehicles.  Because Mr. Ferro was proceeding straight ahead, it was the duty of the left-turning, westbound driver to yield.  Unfortunately, the police officer that responded to the crash scene did not know the law.  He or she wrote in the narrative section of the Illinois Traffic Crash Report that it was the cyclist that had a duty to yield.  Here is that narrative section ("Veh #1" is the bicycle):

Narrative Section of IL Traffic Crash Report
Mr. Ferro was not ticketed by the police officer, but the effect of the cop getting it wrong is significant.  Police reports like this are not admissible as evidence in litigation.  If this matter proceeds to trial the officer's opinion as to what the law is is not relevant.  However, insurance companies, when considering whether to settle a claim, place heavy emphasis on the contents of police reports.  A few weeks ago the driver's insurer sent our firm a letter stating that it is denying the bicyclist's claim because, "The police report and our insured confirm that your client failed to yield the right of way.  Your client is the proximate cause of this loss."  Therefore, a lawsuit will need to be filed so that Mr. Ferro may receive the compensation he needs to satisfy the costs, harms and losses he incurred from this incident.  

We certainly do not mind filing a lawsuit.  Bluntly, that is what we do on behalf of injured cyclists.  But it should not be necessary in a matter like this.  The issue of fault is - or should be - crystal clear.  Mr. Ferro had the right of way and the driver failed to yield, causing the crash and his injuries.  Unfortunately, because he was unlucky enough to have a Chicago police officer respond to the crash scene that did not know the law, he will need to wait an unnecessarily long amount of time to see just resolution of this matter.  I wish I could say that this sort of thing is rare.  It is not.  We often see police reports written by police officers who do not understand the law as it applies to people on bicycles.  The City of Chicago and municipalities throughout Illinois should education their police forces about the laws that pertain to bicyclists.  When the police do not know the law, justice is delayed, unnecessary lawsuits clog our courts, and the important trust between the police and citizenry is undermined.

Friday, January 24, 2014

Injured Illinois State Cyclists Receive Compensation, Chicago Driver Gets Prison

Tracey Brent, now an inmate at
the Logan Correction Center
They never saw it coming.  Suddenly there was chaos and carnage, broken bicycles and bodies strewn everywhere.  Two summers ago, a 40 year old professor at Illinois State University was leading a group of a dozen students on a bike ride on Chicago's Southwest Side when a driver blasted through the group from behind then fled the scene.

Our law firm was retained to represent two of the injured cyclists, the professor, and one of the female students.  Their personal injury cases have now settled and the driver is behind bars.

On August 4, 2012 at around 11:00 a.m. the professor was leading a group of some dozen riders in the "Bike To Build Community" bike tour.  The ride was a part of a student immersion program for teacher education students at Illinois State where students teach in summer schools, complete service projects at community organizations, take seminars and classes and live with host families in partner neighborhoods.  The bike tour was meant as a means of exploring and getting to know the neighborhood.  The ride began at around 10:30 a.m.  The group passed several points of interest before they continued through a quiet resident area north on Green Street, just north of West 77th Street.  As they approached the end of the block, without warning Tracey Brent came barreling through the group in her Honda Quest mini-van striking many of the cyclists.  She did not stop, but proceeded down the rest of the street before jumping over a curb and up an embankment to some train tracks.  Several of the riders where injured and sent to nearby hospitals.  Two of the riders who were not struck raced after the van and managed to snap a photo of its license plate.

Both of our clients' injuries were serious, though, thankfully, not life altering.  The 40 year old man sustained fractured ribs and injuries to his neck and lower back.  The young student sustained a broken wrist, fractured teeth and numerous cuts and abrasions to her face.  She was knocked unconscious at the scene.  Not surprisingly (at least not to us) was that the driver did not have auto insurance.  Illinois requires all motorists to carry auto insurance coverage.  However, many drivers in Chicago flout the law.  We, therefore, made claims with our clients' own auto insurance carriers under the uninsured motorist provisions of their policies.  These provisions generally apply to protect cyclists, and even pedestrians, who are injured by uninsured drivers, even though they themselves were not operating a motor vehicle.  In Illinois, insurers may not raise the insurance rates of their insureds who utilize the uninsured motorist provisions of their own policies.  We are able to secure for our clients the full amounts of applicable insurance.

Thanks to the quick reactions of two of the riders in the group, the Brent was captured and subsequently charged with numerous violations.  On May 31, 2013 she was sentenced to five years in prison.  Now she is prisoner #R89625 at the Logan Correctional Center in Lincoln, Illinois.  She received credit for time served.  Her projected parole date is December 24, 2014.

Thursday, January 23, 2014

Music, Bicycles and the Law

The following piece by Brendan Kevenides originally appeared as part of his Cycling Legalese column on Urban Velo.
People love to listen to music and it comes as no surprise that some people like to do it while riding their bicycle. What is the legality of combining bikes and music? It all depends on how and where you’re listening.
Q:I like listening to tunes while I ride. Is that illegal?
Generally, listening to music while riding a bike is not illegal. However, to know for sure whether doing so is okay or not, two questions must be answered: 1) How are you listening to your music? 2) Where are you?
If you are listening to music via a set of speakers mounted on your bike, then you are okay everywhere. I am not aware of any jurisdiction that bans the use of speakers on bikes for the purpose of listening to music, or anything else for that matter. (Of course, if you’ve got the Justin Bieber cranked to ear splitting levels you may run afoul of local noise ordinances and good sense/taste.) When it comes to bikes and music, what some jurisdictions regulate is the delivery method; in other words, headphones.
A few places have outlawed the use of headphones while biking on public roadways; for example, Florida and Rhode Island. Others have said it is okay so long as you have a headphone inserted in one ear only. California law states, “A person operating a motor vehicle or bicycle may not wear a headset covering, or earplugs, in both ears.” New York also allows headphone use in one ear only. In many states, it is perfectly legal to wear headphones while biking, such as in Oregon and Washington D.C. In 2011, an Oregon legislator, Rep. Michael Schaufler (D-Happy Valley) proposed a bill that would have made it illegal throughout the state to operate a bicycle “while wearing a listening device that is capable of receiving telephonic communication, radio broadcasts or recorded sounds.” Doing so would have resulted in a $90 penalty. Apparently, he told BikePortland.Org that he got the idea for the bill when he “just saw some guy driving down the street on their bike with their headphones on and thought, ‘He could get run over.’” He explained that to him it was “a safety issue.” The bill went nowhere.
Interestingly, in some places the applicability of headphone prohibitions to cyclists is misunderstood. That is the case in my home state, Illinois. Some well intentioned folks claim that it is illegal to bike with headphones here. For example, the City of Chicago states on its website that cyclists should never use earphones because it “is not only dangerous, it’s illegal.” That’s wrong. Neither city ordinance nor state law ban the use of headphones while riding a bike. The only statute that references headphones (it actually uses the term “headset receivers”) states that, “No driver of a motor vehicle on the highways of this State shall wear headset receivers whiledriving.” The emphases are mine. Under Illinois law, a bicycle is not a motor vehicle. Therefore, the prohibition of headphone use does not apply to people on bikes.
Perhaps the more interesting question is not whether it is legal, but whether it is wise to bike on city streets while wearing headphones. There are some important reasons not to do so. There are so many things the urban bicyclist must be attuned to while riding in the city: Trucks, cars, buses, potholes, pedestrians, lights, signs, little dogs, the weather, etc. It may be unwise to diminish one of your senses while navigating a bicycle through this gauntlet of hazards and distractions. By plugging your ears and pouring music into your fully occupied brain while biking you might increase your chances of getting into an accident. In fairness, however, I am not aware of any studies that suggest this is true. Our firm has not seen many cases in which the bicyclist’s use of headphones caused or contributed to cause a crash. On the other hand, if you are involved in a crash, particularly with a motor vehicle, and were found wearing headphones you may harm you chances of successfully seeking compensation for any injuries you receive. Certainly, the driver and his/her attorney will try to suggest that your inability to hear contributed to cause the crash and that compensation should be denied or at least diminished. You and your attorney would be best off not having to deal with the headphone issue should it become necessary to bring a claim or lawsuit.
I am cynical about the motives of those who would make biking with headphones illegal, like Rep. Schaufler in Oregon. I tend to doubt that the safety of the cyclist is the motivating factor behind such proposals. I suspect that the real concern is preventing sound impervious cyclists from slowing motor vehicle traffic. In other words, when I honk, get out of my way. Biking through the city should be pleasant, and for many, listening to music is a great way to ride and feel relaxed. Still, the benefits of headphone use are probably outweighed by the risks.

Thursday, January 16, 2014

Video Identifies Cause of Crash That Injured Bicyclist On Milwaukee Avenue

She could not believe that she just rode her bike into the side of a taxi.  But as she regained consciousness laying in the street, that is what the men standing over her said she did.

On the evening of April 27, 2013, a 26 year old woman was riding her bike in the dedicated bicycle lane near 1165 North Milwaukee Avenue when she crashed.  It was about 9:45 p.m.  The weather was perfect.  Her bike was equipped with operating front and rear lights, and she wore a bright white cycling helmet.  She also had an orange messenger bag slung over her shoulder.  She was a very experienced city cyclist and understood well how to ride safely at night.  The woman had eaten dinner before heading out to meet up with some friends.  She had not ingested any alcohol.  As she rode northwest on Milwaukee there was a taxi cab to her left and a row of parallel parked cars to her right.  With frightening suddenness she found herself waking from unconsciousness on the hard pavement.  Her head hurt.  Her right leg was cut deeply and pain pulsed through her knee.  The upper portion of her right arm was painful as well.  An ambulance arrived at the scene and rushed her to a nearby hospital.

The woman came to our firm seeking representation.  She believed that some part of the taxi entered the bike lane, causing her to crash into the side of the vehicle.  We had seen cab drivers cause crashes in that way before.  Still, we needed to find some corroborating evidence.  Unfortunately, there did not seem to be any video cameras in the area that could have recorded the crash.  Perhaps whoever called 911 following the collision saw what happened.  When we received a response to our Freedom of Information Act request for a copy of the City's 911 log we saw that the call had some from the office of a nearby apartment building.  We phoned the security office there and eventually tracked down the person, a security guard, who had called 911.  Unfortunately, he did not see the crash.  A dead end.

There was a single independent witness identified in the police report, a man whose car was parallel parked along the curb at the site of the crash, just to the right of the bike lane.  He had apparently told police at the scene that the woman just, "lost control of her bike and she fell off and struck" the taxi.  That did not make much sense.  Why would an experienced cyclist suddenly lose control and crash for no apparent reason?  We felt it likely that the cab driver pulled into the bike lane and caused the crash.  We wrote to the cab company and informed it that we represented the bicyclist in a potential claim against its driver.  What happened next was pretty typical; a call from the cab company's representative denying responsibility.  But, not so typically, we were informed that the driver had a camera mounted on his dashboard which recorded video of the incident that supposedly vindicated him.  We invited them to send us a copy, and to our surprise they did.  It was awesome, providing us with the evidence we needed to pursue the person who really caused the crash, the "witness" identified by name in the police report.  The video revealed that as our client pedaled in the bike lane, the driver of a silver/grey old Volvo opened his door into the cyclist as she passed, striking her right side and hurling her into the taxi cab to her left.  Below is video of the incident from the cab driver's dash cam:

video


The Volvo was stopped in exactly the spot identified in the police report as the witness's vantage point.  Also, some further investigation revealed that the witness identified in the report did in fact own a silver/grey Volvo matching the one seen in the video.  The fact that our client had been doored from her right was consistent with the injuries she sustained to the right side of her body.

We had our man and we quickly filed a lawsuit against him.  The case remains pending.  The driver of the Volvo denies that he caused the crash.

Friday, January 10, 2014

Aurora Man With Criminal Past Charged With Killing Mom, Computer Engineer Riding Bicycle

Johua Spuhler,
Courtesy CBS2 Chicago
Shwu-Wei Yeh
An aurora man with a history of criminal offenses, including an earlier DUI conviction, has been charged by Naperville police for aggravated driving under the influence of a controlled substance arising from the death of a 56 year old bicyclist in September, according to The Chicago Tribune.  

Shwu-Wei Yeh, a mother of two and resident of Naperville, was killed on  September 25, 2013 after being struck by a pick-up truck driven by Joshua Spuhler, 36.  She was riding her bike across Diehl Road, near the intersection with Freedom Drive, at about 7:25 a.m. when she was struck by Spuhler, driving a gray 2006 Nissan Titan east on Diehl.  The crash occurred about a mile from Yeh's home, according to CBS2 Chicago. Spuhler will appear in court in DuPage County on Feburary 10th to face charges of having drugs in his system at the time of the crash, according to The Trib.  About 11 years ago, he spent time in jail for "inebriated driving," and is a convicted burglar, according to CBS2 Chicago which has looked extensively into Spuhler's criminal past.

Yeh was a Technical Manager at Alcatel-Lucent with an advanced degree in computer engineering from North Carolina State University and a "brilliant mathematical mind."  Her obituary notes that, "She couldn't have been friends with more people without accidentally having conquered the universe."

Monday, January 6, 2014

Safe Biking In The Winter

You bike in this weather? is a question Chicago cyclists constantly hear during this time of year.  For some reason folks are astonished that people ride their bikes when it is cold outside, but hardly bat an eyelash at the idea when it is in 95 degrees and humid.  As someone who rides all year 'round, I can tell you that riding when it is 20 degrees is much more comfortable than when it is 95 degrees.

I have personal limits.  For the record, I did not ride to work today.  I took the "El".  It is -15 (-30 with the windchill).  That does not make it too cold to bike.  That makes it too cold to just be outside for an length of time, period.

When considering whether to bike in the winter there are safety issues to consider.  

Snow.  Snow is not scary by itself.  Yeah, depending on how much there is, snow can make for a slippery ride.  But if you remember to stay seated to keep weight on your rear tire, and take it slower than usual you will be fine.  If there is a substantial amount of snow, reduce the air pressure in your tires to increase traction.  You will be surprised at how much grippier your tires will be when running at very low pressure.  

The real problem that snow can present is decreased visibility, by which I mean the ability of drivers to see  a cyclist on the road.  In the snow, turn on your bike lights.  Illinois does not require bicyclists to use lights in bad weather (some other states do), only at night.  But the smart cyclist should use them in crappy weather anyway.  Also, do not hesitate to "take the lane" when riding in wintry conditions.  Illinois law generally requires cyclists to ride to the right on the roadway.  However, the law contains many exceptions, and permits cyclists to abandon the right when safety necessitates doing so.  Often in Chicago, the ride side of the road, including bicycle lanes, will be a bumpy, icy mess in the winter.  It will often be unsafe to ride on the right side of the lane in these conditions.  Understand that you are within your rights to move left into the main travel lane when the conditions require it.

Ice.  Hitting a patch of ice, particularly ice that cannot be easily seen, is scary.  Again, substantially reducing your tire pressure can help you stay upright.  You will want to reduce the pressure far more than you think.  When it is very icy I will ride with my tires nearly flat, with perhaps 15 psi.  The grip bike tires provide at that low pressure is amazing.  There are downsides to riding with your air pressure that low.  For one, you are at an increased risk of getting a "snake bite" flat, so do not leave then house without all of the equipment you need to change a flat, spare tube/tubeless tire, tire levers and pump/CO2.  However, I have found that if you are riding slowly the risk of getting a pinch flat is low and worth taking given the traction benefits.  Running at low pressure will also increase your risk of the tire coming off the rim of the wheel.  This risk is lower the fatter your tires are.  Also, tubeless tires are at decreased risk for encountering this problem because they are glued to the rim.  Again, if you ride slowly, the risk should be minimal.

The other thing you can do to better your ability to stay upright in icy conditions is to ride with studded tires.  Several companies make tires with small metal or composite studs that grip extremely well on ice.  Lots of bike shops in Chicago sell these during the winter.  The downside to studded tires is that they just plain suck on hard, dry pavement.  They slow you down considerably and make you feel like you are pedaling in loose sand.  They can turn a long commute into quite a slog.  But, when there is a lot of ice, they are awesome.

Sun.  Ever since the beginning of time man has yearned to destroy the sun.  Okay, not really, but on the rare occasion that it shows itself in the winter, it can be a real bitch.  With ice and sun on the road producing a mirror-like effect, glare from the winter sun can be blinding.  This means than when riding into the sun, drivers may have a harder time seeing you.  You may appear as a back-lit shadow to an approaching motorist, if you are seen at all.  To increase your visibility, ride with your lights on.  Also, make sure that you lights have fresh batteries so they operate at maximum brightness. When turning, remember to use arm signals to indicate your intent, as is required by Illinois law.  In sun glare conditions be extra vigilant about doing so.  Wave your arms like a crazy person if you have to, just do your best to be seen.

Dark.  Here is something you already know:  It is dark a lot in the winter.  If you are a bike commuter, you will often be riding to and from work in the dark.  The law, and good sense, requires that you ride with a front facing headlight and at least a red rear reflector.  In addition to those requirements, I suggest riding with a bright, red rear light.  You should also consider riding with something, reflective tape on your bike or clothing, or lights on your wheels, that increase your visibility to motorist from the side.  Some manufacturers even make bike tires with reflective sidewalls.

Equipment problems.  The CTA and many airlines were experiencing equipment problems today due to the severely cold temperatures.  I am guessing that there were more than a few Chicagoans who had cars that would not start this morning for the same reason.  Bikes, of course, are much simpler devices than planes, trains and automobiles and less prone to breakdown.  However, equipment problems can happen.  I have had derailleurs freeze on me.  I tend to see this happen when I ride in wet conditions, then leave the bike outside during which the temperature plummets causing wet parts to become icy parts that do not work very well.  Plain filth can cause equipment problems too.  Looking at the muck and grim that accumulates on your bike after just a single winter ride you may be amazed that so much nasty junk exists in the world.  A build up of grim can cause parts to fail.  To reduce the possibility of bike equipment failure in the winter, store your bike indoors whenever possible.  Also, clean your bike way more than you do during the rest of the year.  After riding in snow, take a few seconds to wipe your chain with a dry rag.  This will keep it cleaner and decrease rust build up.  A reasonably well cared for bike should get you around town all winter long without a hiccup.

I am not aware of any data that demonstrates that city cycling in the winter is more or less dangerous than during the rest of the year.  Like in the warmer months, the key to staying safe when sharing the road with cars is being as visible as possible.  Do that, and winter riding will be safe and a lot of fun.

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