Thursday, June 27, 2013

New Website Invites Chicago Bicyclists To Document "Close Calls"

You swerve to miss a door swung open into your path; stop just in time to avoid a driver turning in front of you; bunny hop over a huge pothole in your way.  Close calls are a certainty when biking in Chicago.  They can leave you shaking your head.  They can make your heart pound, and a certain part of your nether regions pucker.

Not every bicyclist responds the same way to having a near brush with injury.  Some will shrug it off.  Some will learn from it.  Others may place their bikes in the garage. . . for good.

Close calls are important.  Understanding when, where, how and how frequently they occur is important to gain a more complete appreciation for how safe cycling really is in Chicago.

"Actual crashes only tell part of the story," said Anne Alt, president of the Chicago Cycling Club.  "Learning about close call incidents provides a more detailed picture of biking in the city."  (Full disclosure:  Anne is a paralegal at our firm.)

There is a new effort underway to document cycling close calls.  Chicago bicycle advocates Steven Vance and Gin Kilgore have created a website to track bikers' brushes with near bang-ups.  Cyclists can go the the simply named site, Close Calls, and document their incidents in their own words.

In a statement on the website, Steven and Gin explain, "The purpose of Close Calls is to collect data about cyclists’ encounters with inattentive and reckless driving, as well as poorly designed and maintained infrastructure. These close calls, while not physically injurious, contribute to perceptions that Chicago’s streets are not safe or comfortable for cycling, which in turn compromises efforts to get more people on bikes."

They hope that,"This data will help identify “hot spots” that need attention–whether through targeted enforcement, education or roadway modifications."

Wednesday, June 26, 2013

A Big Fat Primer On Insurance For Bicyclists

Do I write about insurance too much?

I am a bit self conscious about tapping out another post about insurance.  (Maybe it is the law dork equivalent of, Does this dress make me look fat?)  But buying insurance it is the number one thing bicyclists can and should do to protect themselves in case they are injured in a crash.  So, here is a look at the types of coverage bicyclists should consider purchasing.  It originally appeared in my Cycling Legalese column at Urban Velo.  If this blog post makes me look fat, so be it.

It comes up amongst serious commuters all the time, should cyclists carry insurace? Are you already covered by existing policies? In this column Brendan lends some insurance guidance on what to look for in a policy.

Q:My bike is my primary means of transportation, so I ride a lot. Should I have insurance just in case, and, if so, what kind?
Talking about bikes is awesome. Insurance, not so much. But if you ride a lot in the city it is time to eat your peas and contemplate it, if only briefly. If something bad happens you will wish you thought about it. Cars, trucks and buses tend to produce horrible results when they collide with people on bicycles. For that reason, motor vehicle owners are generally required by law to have insurance to compensate anyone they may injure. Nevertheless, nationally one in seven drivers, over 14%, fails to carry the necessary coverage, according to the National Association of Insurance Commissioners. In big cities, based on my experience, the statistics are ever scarier. I would guess that in Chicago where I practice, one quarter to one-third of all drivers go without auto coverage. That means if you get hit by one of these scofflaws your chances of being compensated for your injuries and damage to your bike are nil. But you can protect yourself by purchasing insurance before a crash.
Here is a brief primer on the coverage you should have:
Health insurance: I know, it is expensive and these days fewer employers offer it to their employees. Those dreary facts noted, do whatever you can to get yourself covered. Get on a parent’s policy. Look for a job with great benefits, even if the salary is not the best. Companies like Whole Foods, REI and Starbucks are well known for providing employees good benefits packages. Even with a seemingly minor injury medical bills can mount up fast. An ambulance trip to the hospital alone can run you close to a thousand dollars. Add in some x-rays and an ER trauma protocol and your bills could be jaw-dropping. The bottom line is that if there is any way that you can swing getting health insurance, you should.
Auto insurance: A bicyclist should have car insurance. If you get hit and injured by a driver you may look to your own auto policy for protection. It matters not that you were on a bike instead of in your car at the time of the crash. If one of the conveyances involved was a motor vehicle, then your auto policy may provide you with coverage. Your auto policy will likely have two relevant provisions: “med pay” and un/underinsurance motorist coverage. The medical payments provision of your policy will pay your bills up to a set amount, usually between $5,000 and $10,000. Med pay can get eaten up fast by medical bills but it is better than nothing. Also, it will not be necessary to prove that the other driver was at fault to recover under the medical payments provision of your policy. If you are injured by a motorist that coverage is generally available. Uninsured and underinsured coverage generally provides more substantial coverage. However, you will be required to provide proof that the un/underinsured driver was at fault for causing your injuries. You may wish to have an attorney assist you in recovering un/underinsured motorist coverage from your insurer.
Non-owners auto insurance: No car? No problem getting car insurance. Consider non-owners auto insurance. These policies are offered by many insurance companies and tend to be more affordable than owner’s coverage, generally about half the premium of a traditional auto owner’s policy. They may provide medical payments coverage, just like traditional auto policies. Also, they may protect the non-car owning bicyclist who is injured by an uninsured or underinsured driver. The other nice thing about non-owners policies is that if you decide that the no car thing is not for you, you will have established an insurance history which may help you get a fair rate on car insurance.
Bicycle insurance: This is another option for the bicyclist who does not own a car. Also generally less expensive than traditional auto insurance, these policies provide coverage to pay your medical bills and to fix/replace your bike. They may also protect you should you injure another cyclist or pedestrian. There seem to be more and more companies sprouting up to offer bicycle insurance. One company that seems to be aggressively marketing its services is Markel American. Curious about what they had to offer, a few months ago I investigated. What I found was that for $310 a year, $25.83 a month, I could receive $25,000 in “bicycle liability” and “vehicle contact protection.” Markel defines bicycle liability coverage as “protection for bodily injury or property damage” for which the insured cyclist becomes liable to another person such as a pedestrian, another bicyclist, or motorist. Vehicle contact protection is coverage to benefit the bicyclist should he or she be injured by an uninsured or underinsured driver. That $310 price also includes $10,000 in medical payments coverage defined by Markel as coverage providing “protection for the reasonable charges for necessary medical, surgical, x-ray, dental, ambulance, hospital and professional nursing services and funeral service expenses incurred within one year form the date of an accident causing bodily injury to an insured while using an insured bicycle.” Generally, the insured may receive compensation under a medical payments provision of an insurance policy regardless of who was at fault for causing his or her injuries. The quote I received also provided some nice benefits should the insured bicycle become damaged in a crash.
Homeowners and renters insurance: If you own a home or rent an apartment it is a good idea to have this sort of coverage. These policies may compensate you if your bike is stolen, even if it is swiped far from home. They may also protect you with liability coverage if you injure someone else while riding your bike. However, they probably will not offer a source of compensation to you if injured while cycling.
Insurance companies market themselves as offering safety and security should your world turn upside down. Sometimes they do. However, whether a particular policy is really worth the premium depends upon how it works when it is really needed. Please do not accept anything I have written here as an endorsement of any particular company or any service or policy it provides. I strongly encourage readers to investigate for themselves when purchasing insurance. Of course, all insurance policies are different. Ask lots of questions when purchasing a policy. Assume nothing.

Thursday, June 20, 2013

The True Cost Of IDOT's Obstructionism For Chicago Cyclists

by Jim Freeman

I know I've ragged on the City in the past about their bicycle infrastructure, but man, I'm loving the stuff they are doing right now.  Sure, there could be better surfacing in some places, and they need to fix some drainage and signage problems, but overall my commute has improved 100% over the last two years. 

I love that the new bicycle lane on Milwaukee Avenue has a passing lane on the hill over the expressway. The Kinzie to Dearborn protected bike lanes have reduced the number of driver conflicts I experience going into the Loop.  My personal favorite small thing CDOT is doing is installing left turn boxes.  Every time I use a left turn box on Dearborn I smile a satisfied smile.

For years I've been asking people who are "in the know" why we can't get a bike lane or at least a Shared Lane Yield To Bikes sign for Logan Boulevard at Western under the expressway.  My girlfriend rides through there frequently.  It's a death trap, but Logan Boulevard is one of the most direct east-west routes to and from Logan Square.  There is a bike lane on the east side of the expressway...  What's up?

I've been told for years that IDOT won't allow the installation of signage or bike lanes there.  That stretch of Logan Boulevard is under the control of IDOT.  So are a lot of roads in Chicago...  Clybourn, North Avenue, and others.  It is often the case that when a road crosses an interstate, IDOT is another level of bureaucracy that City planners must negotiate to get bicycle infrastructure installed.

Consider why the Madison Street bike lane sucks so bad...  It is largely because it ends in the middle of interstate chaos.  Cyclists riding west from the Loop get dumped out into the mess that is IDOT's expressway jurisdiction with no signage or indication to drivers or cyclists how they should go about negotiating the dangers present at that location.

The left turn box on Jackson at Dearborn was a good idea.  I love left turn boxes.  They make navigating intersections much safer and effortless for bicyclists.  Did you notice that the left turn box on Jackson was blacked out?  Wonder why?  Jackson is an IDOT road.

For years I thought Logan Boulevard at Western was just a fluke, but now I realize that IDOT is confounding Chicago's efforts to install bicycle infrastructure all over the city.  To me the most irritating things about all of this is that the most dangerous intersections to negotiate on a bicycle are the ones IDOT controls.  They offer excuses: There isn't enough space...  We can't make room for bike lanes...  We'd like to see three years of data...  The excuses seem like bunk at this point.  I don't believe that a Shared Lane Yield To Bikes sign under the expressway is something that can't be done.  I rather suspect that IDOT views transportation as nothing more than moving cars.  At this point we are paying the price in blood...  Bobby Cann, Alicia Frantz, Tyler Fabeck, and others were all killed in places where there is an IDOT interruption to Chicago bicycle infrastructure.

Friday, June 14, 2013

It Is Crystal Clear, Chicago Cyclists May Pass Slower Traffic On The Right Thanks To New City Ordinance

It is now crystal clear that in Chicago bicyclists may pass slowed or standing motor vehicles on the right.  A section of the 2013 Bicycle Safety Ordinance proposed by Mayor Rahm Emanuel on May 8th and passed by the City Council on June 5th clarifies the matter.  It will become law when signed by the Mayor, which is expected to happen soon.

The section states:
Any bicyclist upon a roadway is permitted to pass on the right side of a slower-moving or standing vehicle or bicycle, but must exercise due care when doing so.

This amendment to the Code clears up some confusion over whether a section of the Illinois Motor Vehicle Code, allowing for right-sided passing only when eight feet of space was available in which to do so, applied to bicyclists.  Some Chicago police officers were ticketing cyclists for passing cars and trucks on the right in the absence of eight feet of space, rarely available in our congested city streets.  I noted in a previous blog post that the state vehicle code's eight foot rule only applied to two-wheeled motor vehicles such as motorcycles and scooters.  Nevertheless, confusion persisted until the Mayor's office, with assistance from the Active Transportation Alliance, stepped in to offer more definition to the law.

Though the eight foot rule is a controversy no more, it is important to note that cyclists do not have carte blanche to pass vehicles on the right.  They must, "exercise due care when doing so."  This is legalese for, you can do it only when it is safe.  Just because you have the ends of your handlebars shaved down to nubs to thread the tightest spaces between cars does not mean that you may do so legally.  Also, Chicago bicyclists must yield to pedestrians who have exited vehicles which have not pulled to the curb.  The second sentence of 9-52-040(d) states:
When approaching a vehicle which has discharged passengers from its right side, a bicyclist must either yield to those pedestrians or pass on the left.
In order to understand what a cyclist's responsibility is when a vehicle discharges a passenger from the vehicle's right side it is important to know how the language passed by the City Council came to be.  When the Mayor's office originally proposed the amendment, section 9-52-040(d) stated:
Any bicyclist upon a roadway is permitted to pass on the right side of a slower-moving or standing vehicle or bicycle, but must exercise due care when doing so.  When approaching a vehicle discharging passengers from its right side, a bicyclist must either yield to the pedestrians or pass on the left.
(emphasis added).

Apparently, the intent of the second sentence was to offer protection to bus passengers forced to alight from a bus that was not able to pull fully to the curb.  When the ordinance was proposed by the Mayor's office, the Active Transportation Alliance was nice enough to provide us with a copy.  When I read the second sentence I was concerned that, notwithstanding the drafters' reasonable intentions, the section could be used unfairly against a bicyclist doored from the left.  In particular, I imagined a taxi cab company, whose driver chose to discharge a passenger without pulling to the curb (required in Chicago), using the section to defend against a dooring claim brought by an injured bicyclist.  Those sorts of incidents happen a lot in Chicago.  One such incident happened to a client of ours whose story was told in a recent post on Streetsblog Chicago.  Once a passenger opens a car door, no matter how suddenly, the bicyclist must yield or swing around to the vehicle's left was how I imagined the ordinance would be interpreted.

When I expressed my concerns to Ron Burke, executive director of the Active Transportation Alliance, he was very responsive.  He wisely set up a meeting between CDOT, Active Trans and the City's law department to discuss the matter.  My law partner, Jim Freeman, and I were invited to the meeting and attended.  We proposed elimination of the second sentence altogether.  Stating that bicyclists had to pass with "due care" seemed like enough.  The City pressed for greater clarity, however, in a desire to make sure that pedestrians exiting a vehicle were protected from cyclists under the law.  Fair.  We proposed that the duty of the bicyclist to yield kick in not when the passenger is being discharged, but rather once the passenger had been discharged.  What's the difference?  An important one:  Under our proposal the bicyclist has the duty to yield once the passenger has completely exited the vehicle; not simply when the door was opened.  We felt this created a sharper line.  For the passenger to have completely exited the vehicle the door would have been opened for a long enough period of time for an approaching bicyclist to see and avoid it and the exiting passenger.  To be clear, drivers and passengers owe a duty to bicyclists to look before opening a door on the vehicle's the left and right.

I would like to express our very sincere thanks to CDOT, the City of Chicago and the Active Transportation Alliance for so thoughtfully addressing our concerns and for their commitment to protecting cyclists in our city.

Efforts are underway to clarify the Illinois Motor Vehicle Code itself with changes like those being initiated in Chicago expected soon.  More on that in a later post.  Stay tuned...

Monday, June 10, 2013

Chicago Area Cyclist Left With Serious Facial Injuries From Intersection Collision In Evanston

The lean, 31 year old athlete was sitting across the conference room table from me when he felt the need to apologize for what he was about to attempt:  Eat.

I sat quietly as the young man reached into his backpack and pulled out a bottle of fruit juice along with a giant syringe.  Instead of a needle, attached to the end of the device was a thin tube about 12 inches long.  The man unscrewed the bottle top and pushed the tube deep into it.  He pulled the plunger until the barrel was filled completely with bright orange liquid.  He took the tube out of the bottle, stuck the end into his mouth then depressed the plunger.  Most of the liquid went to the back of his throat.  Some trickled down his chin.  He dabbed his swollen, scarred mouth with a napkin and looked at me.

"Sorry.  This is the only way I can 'eat'," he mumbled.  "I can't even use a straw."

Ever since the June 2nd collision that left him with eight missing front teeth, a broken jaw and a fractured cheek bone, Richard Breininger, has taken in all of his nourishment this way.  He faces many months of difficult, expensive treatment before he can hope to sink his teeth back into his favorite foods.  

The crash occurred at around 7 a.m. on a dry, pleasant morning as Mr. Breininger, an elite amateur cyclist, was riding his bicycle north along the right side of Chicago Avenue in Evanston.  When he approached the intersection with South Boulevard the controlling traffic light was green and he proceeded straight.  At the same time, a 29 year old woman driving a 2006 Toyota Corolla was proceeding south through the same intersection.  Apparently not seeing Mr. Breininger who had the right of way, she swung her vehicle to the left in an attempt to turn onto eastbound South Boulevard.  She nailed him head on.  The bike's front wheel fragmented upon impact.  Its fork was sheared clean off at the head tube.  The cyclist fared worse.  All of his front teeth splintering on impact with the car and the bones on the right side of his face shattered.  Later, in the hospital, he would find flecks of silvery paint from the car imbedded in his skin.  He was wearing a helmet, and never lost consciousness.  He was fully aware when he looked up from the pavement to see the young driver exit her vehicle talking on her cell phone.

An ambulance rushed Mr. Breininger from the scene to St. Francis Hospital nearby.  He remained there for a short time until he was taken by ambulance to Maywood and Loyola University Medical Center where he could receive a more thorough assessment of his severe injuries.  He is expected to undergo several surgeries in the coming months.

Mr. Breininger has retained our law firm to represent him.

Sunday, June 9, 2013

Legal Panel To Be Held Discussing Death of Chicago Bicyclist

Online communication is a great way to stay informed about what is going on.  However, the internet is often a place where bad information is planted and misunderstandings take root. In the wake of the death of Chicago bicyclist, Bobby Cann, there have been some thoughtful online discussions, but also rank speculation and some plain bad ideas.  A petition is circulating asking that the driver that killed Bobby not be allowed to reach a plea bargain deal in his criminal case.  But would that really be a good idea?  Could a protected bicycle lane on Clybourn Avenue where he died have prevented the collision?  Is it appropriate to contact Bobby's family about erection of a memorial?  Some Chicago cyclists may be wondering, what if something happens to me while I am riding?  What rights do me and my family have?  These questions and more have been asked by many Chicago cyclists since Bobby Cann's death.  It seems like a good time to get together, and talk; you know, like people did back in the day.

On Tuesday evening from 6:30 to 8:30(ish), myself and criminal defense attorney, Ian Kasper, will present a discussion about Cycling, the Law and the Bobby Cann case.  I will talk about ways to reduce your chances getting hit by a car while cycling and what to do if you are.  Ian will talk about the prosecution of drivers who injure bicyclists.  But we will be ready to field questions about about the legal aspects of the case that has been on everyone's mind since May 29th.  We invite anyone and everyone to come with their questions about how the crash happened, how future such incidents may be avoided and what may lie in store for the man who killed Bobby.  We will talk about what we know, and we will tell you honestly what is not yet clear.  First and foremost we intend to provide a forum for thoughtful discussion and reflection.

There is no fee to attend.  Please visit the event listing on The Chainlink for additional details and to RSVP.

Friday, June 7, 2013

A "New" Law Firm For Bicyclists With An Accidentally Profane Name

I walked into Boulevard Bikes in Logan Square several years ago.  I had been writing this blog about bicycling and the law for a few months and wanted to get the word out about it. I made some bike themed stickers with the The Chicago Bicycle Advocate's web address printed on them along with my phone number.  I figured I would leave stacks of them in Chicago bike shops in hopes that fellow cyclists would pick them up, stick 'em on their bikes and helmets and perhaps wonder over to the blog to check out my writing.  Maybe some would remember me if they got hit by a car.

Boulevard is a quaint shop.  It is small, tucked into a corner of Logan Square next to Lula Cafe and steps from the Monument that is the heart of the newly thriving, bicycle centric neighborhood.  The shop is traditional as bike shops go.  It does not make custom frames, serve coffee or specialize in the latest carbon fiber uber-bikes.  It primarily sells bikes comfortable in the urban setting: Surly, Torker, Soma and steel Bianchis.  The owner of the shop, a tall, lean guy who looks like a cyclist named Kevin Womac, greeted me as I wondered deeper into the store.  Could he help me, he inquired earnestly.

"Hi, I'm Brendan.  I'm a personal injury lawyer and I represent bicyclists."

He didn't throw me out.

"I also write a blog about biking and the law.  I was wondering if I could drop off some stickers for your customers."

"That sounds like a great idea," he said.  "Absolutely."

"Hey," he continued.  "You must know Lawyer Jim."


And so it was that I first learned the identity of the guy who, many years later, would become my law partner.

I have represented a lot of bicyclists since then.  I have been humbled by how well this blog has been received.  Over the years Jim Freeman and I met and got to know each other a little bit.  We both loved bikes and had law practices focused on representing injured cyclists.  We knew a lot of the same people in the community.  And we were competitors each feeling that he had the best to offer to bicyclists in need of legal representation.  We pushed each other to do more for the community, fighting to prove who had the greatest dedication.  Jim would don a yellow safety vest and stand on street corners handing out free bicycle lights to people riding by.  I would spent nights and weekends teaching adults how to ride safely in the city.  For neither of us was the "bike thing" a marketing campaign.  The bicycle community was something we were dedicating ourselves to.

And then it dawned on us. . .

Let's join our resources and form one awesome bicycle law firm.  On June 1st that is what we did creating the Freeman Kevenides Law Firm, FK Law.  I am excitedly about what we are doing here.  Jim and I have a kick-ass group of lawyers and paralegals who are all cyclists working to help injured cyclists. This is quite honestly the best job in the world.  We hope that through our efforts we can not only help individual bicyclists, but promote safer cycling in our city and throughout Illinois.

I recently told a good friend of mine about the new partnership.  When I told him that we were calling ourselves FK Law he enthusiastically responded,

"I love it.  And your slogan could practically write itself...

... Been hit by a car?  FK 'em!"

Thursday, June 6, 2013

Ride Naked And Safe

The World Naked Bike Ride is this Saturday.  Last year I rode with the clothed security detail.  I tagged along mostly at the end of the group of thousands of nude, or nearly-nude, riders, my yellow reflective safety vest making me look either official or dorky (or officially dorky).  At one slow point in the ride an astonished female onlooker shouted at me, And what are you supposed to be?  "Security," I happily replied.  Yeah, right, she snarled.  

This year I will again be riding the security detail, doing my best, along with many other volunteers and police officers, to make sure that the ride does not get any weirder than it is supposed to be.  Yeah, right!

Here is a column from this week's Cycling Legalese, published on the Urban Velo website, about how to avoid trouble on the WNBR:

Getting ready for the World Naked Bike Ride? We’ve got some tips to keep you legal and out of jail for the night.
Q:I am thinking about doing my first Naked Ride. I know a lot of people do it, but could I get in trouble?
The World Naked Bike Ride, taking place in cities around the world, is coming up. The reasons for doing it vary by individual, but generally the ride is meant as a celebration of cycling, a work of participatory performance art, and an act of political protest against big oil. It is also meant to draw attention to cyclists as roadway users. (Can you see me now, Mr./Ms. Motorist?)
I have participated in Chicago’s large edition of the event, helping the security detail and the police provide a safe atmosphere for riders. (I ride with the security detail fully clothed. No one wants to see their lawyer streak by in the buff.) From my experience in Chicago, and based on what I have read of the event in other cities, the event is generally peaceful and the police tend to be mostly tolerant. However, there are ways to get in trouble on the ride. Here is a basic guide on how to avoid getting busted:
Ride With The Pack: Staying with the mass of riders you are arguably a part of a well-established political and artistic act meaning that you are probably entitled to the protection of the First Amendment allowing for free speech. On the other hand, once you have separated from the group you are just a dude naked in the street and as such may have a harder time arguing that your conduct is protected under the First Amendment. You could be arrested for violating local indecent exposure laws. If you run into mechanical trouble (with your bike that is) or need to break from the group for any reason, put your clothes on to avoid a run in with the police.
Don’t Act A Fool: It may not be your nakedness that ends up getting you into trouble, but rather your conduct. It seems that some folks down a bit too much liquid courage in preparation for dropping their drawers in front of thousands of city dwellers. Doing so could lead to running afoul of local BUI laws, in places where they exist, or public drunkenness and disorderly conduct laws pretty much everywhere. Avoid alcohol for this event.
Don’t Be A Creep: Perhaps this should go without saying, but be aware that it may not take much to make people around you feel uncomfortable. Do not take anyone’s picture without asking them first. This is common courtesy. Also, be advised that while the World Naked Bike Ride is generally a friendly, welcoming event, unfortunately, it does attract some weirdos who come out just to shoot video and photos. The folks in the security detail will be on the look out for these people but be advised that the creeps do come out. Understand what you are getting into and, as they say, “bare as you dare.”

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