Thursday, October 31, 2013

Chicago Area Cyclist To Pedal To Mexico To Raise Money For Diabetes Cure

When Jorge Balderas asked us to help support his upcoming bicycle trip from Chicago to Mexico to raise money for the fight against diabetes we did not hesitate.  An epic bike trip to raise money for an important cause undertaken by a great guy (and client of ours) definitely gets our juices flowing.

Jorge leaves on Monday on his self-supported trip which he hopes with raise money for the Chicago Diabetes Project. The journey will take him from his home in Evanston to his home town near the city of Guanajuato, Mexico.  He hopes to reach his destination before the start of the new year.  On his way he will visit his sister in Denver who is stricken with a diabetes related illness.  From there he will pedal on to Tuscon, Arizona then cross the border into Mexico.  Jorge has set up a Facebook page for the trip he is calling the Tour de Diabetes Cure.

This is not the first time Jorge has epically pedaled southward.  Two years ago he rode from Vancouver, Canada to Mexico.  His preparation for that trip was featured on Univision (ESP):

Wanting to wander again by bike, Jorge had one problem:  He did not have a bike capable for making the long journey, having left his old bike in Mexico.  Enter our good friends at Boulevard Bikes in Logan Square. They hooked him up, at our request, with a sweet Bianchi Volpe (festooned, of course, with stickers) more than capable of getting him and his gear south of the border:

Jorge with his new bike from
Boulevard Bikes in Logan Square

Yeah, we gave him stickers

Why is Jorge doing this?  "I want to be happy and try to help others," he said.  Any questions?

A private party will be held on Saturday evening at the Evanston Cimena for Jorge's friends and supporters to see him off.  

Monday, October 28, 2013

92 Year Old Oak Park Cyclist Who Lived On His Bike, Killed By Driver

Suleyman Cetin
Preparations are underway to commemorate the life a 92 year old Oak Park bicyclist who was killed by a driver on Thursday.  Suleyman Cetin, an avid cyclist despite his age, was hit by a Chevy Impala at the intersection of Madison Street and Scoville Avenue at approximately 8 p.m. on October 24th, according to  The driver, 46 year old Rolando Ivory, was ticketed for failure to reduce speed to avoid an accident, according to The Chicago Tribune.  Members of the cycling community are planning to install a ghost bike near the crash scene.

Mr. Cetin was reportedly riding northbound on Scoville, crossing Madison, when he was struck, according to The Tribune, citing a Village of Oak Park press release.  He was pronounced dead about 2 hours later at Loyola University Medical Center in Maywood, according to

Originally from Turkey, Mr. Cetin was well-known around Oak Park and continued to live an active life up to the moment of his death.  Those that knew him say that he was often seen around town on his bike or working odd jobs.

Thursday, October 24, 2013

New Study Looks At Effectiveness Of 3 Foot Passing Laws

A new study on the effectiveness of bicycle safety legislation in many states nationwide reveals that three foot passing laws are viewed by many as a "vital tool to increase bicycle safety."  However, the study also laments difficulties involved in enforcement.

The study, The 3 ft. Law:  Lessons Learned from a National Analysis of State Policies and Expert Interviews, was created by the Rutgers Edward J. Bloustein School of Planning and Public Policy.  It offers a survey of the experiences of 20 states that have 3 foot passing laws in place, and considers the pros and cons of the laws with regard to its contribution to an increase in cycling safety.  These laws mandate that drivers give cyclists on roadways at least 3 feet of space when passing.  In the end, the study is short on data demonstrating the effectiveness of the laws in increasing cycling safety.  It provides a lot of anecdotal "evidence" from bicycle advocates nationwide who tout the provisions as effective tools for educating the motoring public about the rights of cyclists.  It also notes that the laws are part of a growing fabric of policy adding legitimacy to the bicycle as a practical transportation tool.  On the other hand, the study gives a lot of space to the argument that the laws are unenforceable and of little real world consequence.  Here is a link to the full study.

The Rutgers team focuses on how the 3 foot passing statutes are used, and not used, by law enforcement nationwide.  It notes that one jurisdiction briefly set up a sting to catch motorists violating bicyclists' space, but mostly describes police officers as generally unable to consistently enforce the laws.  Sadly, the study completely neglects the role the 3 foot passing laws may pay in the civil justice context.  For our firm, and others focused on representing injured cyclists, the laws are strong, sharp arrows in our quivers to use to go after drivers who harm cyclists.  In negotiating with auto insurance carriers and their attorneys we routinely cite the 3 foot laws to demonstrate a driver's negligence.

Just law week, I represented a client at an arbitration hearing in which I cited Illinois's 3 foot law.  This particular arbitration hearing was, in essence, a mini-trial in which witnesses were called and interrogated and both sides' attorneys provided opening and closing statements.  The case involved a female bicyclist who was struck by the front quarter panel of a vehicle whose driver passed too closely on Wells Street in Chicago's Loop, a notoriously narrow street with menacing pillars on both sides which support elevated train ("El") tracks.  The defense argued that the cyclist was reckless for coming too close to the vehicle.  However, citing the 3 foot passing law, I was able to effectively demonstrate that it was the driver who failed to give the cyclist the space she was entitled too under the law.  The panel found the driver was principally negligent and provided an award in the cyclist's favor.  (They found that the cyclist was, to a small extent, contributorily negligent, but that finding served only to minimally reduce the award, rather than to preclude it altogether.) It was a fair result.

Bicycle advocates often focus only on the criminal side of law enforcement.  In my experience, the the ability of the civil justice system to provide both compensation for the individual cyclist's harms and losses, and advocacy for cycling in general is too often overlooked by bicycling supports.  I can only guess as to why.  I fear that decades of negative media coverage about personal injury lawsuits have cast our civil justice system as merely a crass money making enterprise for greedy lawyers with ruby pinky rings.  This caricature is unfair.  The work we do can, and I believe does, have a positive broad effect.  Suing someone for passing too closely to a cyclist and causing harm, or for dooring a cyclist, can have a wide social effect.  Not only is the driver being sued likely to be more careful in the future, to the extent that driver spreads the word about his or her experience with the civil justice system, the people they know are put on notice to act more carefully around cyclists.

Friday, October 18, 2013

The Undamning Of People On Bikes

Damn bicyclists!

Too often motorists only seem to notice the bike, the helmet, the message bag, etc.  They do not see the person on the bike.  Perhaps this selective recognition is what gives the driver - in his or her mind - license to recklessly endanger the lives of people on bikes.  Despite the increasing betterment of Chicago's cycling infrastructure, it dawns on me that virtually everyday on my ride into the office I have a close call with a driver.  I do not think about that often.  If I did, I would probably take the "EL" to work.  

I do not know how to change the minds of drivers.  I am going to keep suing them when their conduct causes actual harm.  But my preference is that there be no more crashes.  (Do not worry about me.  I would find something else to do.)  I came across a new ad campaign in Pittsburgh this morning, highlighted over on the Urban Velo website.  I would love to see billboards all around Chicago like this.  That would be a nice start.

Courtesy of Bike Pittsburgh

Thursday, October 10, 2013

In Upholding $1.9 Million Verdict, IL Appeals Court Protects Bicyclists From City's Shoddy Roadwork

Yesterday, the Illinois Appellate Court upheld a $1.9 million jury verdict to a bicyclist injured due to shoddy roadwork performed by the City of Chicago.  With the decision the Court provided some important clarification regarding how a jury should be instructed in cases arising from injuries caused by an activity performed negligently by a local municipality.

The case, Smart v. The City of Chicago, 2013 IL App (1st) 120901, arose from an incident that occurred on July 1, 2007.  On that day, Todd Smart, an avid cyclist, was riding his triathlon road bike east in the bike lane on Cortland Street near the intersection with North Marcey Street in Chicago.  It was a route he knew well, having ridden his bike through the area countless times previously.  As he approached the intersection he saw that the "street's surface changed from a smooth to a rugged texture as a result of a resurfacing project" being done by the City.  He also saw that the utility covers in the road, "which are normally flush with the pavement, were protruding above the street surface."  Worried, the cyclist slowed his bike.  As he "approached one of the square [utility] covers, he steered left to go around it at which point the front tire of his bicycle lodged in the roadway."  His bike stopped abruptly, throwing him into the road where he sustained a serious shoulder injury.  Later, it was determined that the condition that caused the crash was a "gash or shallow trench" in the road created because a small grinder used during the road work was "left on and standing in one place."  The bicyclist's attorneys retained a expert familiar with industry standards for resurfacing roadways to investigate the matter.  He determined that the grinding and resurfacing work was not performed in compliance with industry standards, and that if the City had performed the work properly the trench would not have existed.  The jury found for the bicyclist at the end of trial.

The City appealed believing that the jury was not properly instructed regarding what the bicyclist was required to prove.  At the end of a trial in a personal injury case, after all of the evidence has been presented but before the jury begins its deliberations, the judge reads instructions to the jurors guiding them on exactly how they are to come to a decision.  Those instructions are printed in a book, Illinois Pattern Jury Instructions. Which of those instructions are to be read to jurors is always a matter of debate between the sides in litigation and the judge is compelled to make some important decisions in that regard.  To the non-lawyer such matters may sound like hyper-technical noise.  But deciding how a jury is to be instructed is vitally important to reaching a fair outcome.  In Smart, the City wanted the jury instructed in such a way that would have increased the plaintiff's/bicyclist's burden at trial, making it harder for the jury to find in his favor. At issue was whether the bicyclist's case was a premises liability action, or simply a negligence action.  If the plaintiff's injuries were the result of a condition of the property (the road), then it was a premises liability action.  If the crash was instead caused by the City's activity, then plaintiff's cause was a straight negligence action.  If you are a law dork like me you can read the decision to understand how the court analyzed the matter.  But the bottom line is that if the injuries were due to a condition then the plaintiff would have to prove that "the City had notice of the condition that posed an unreasonable risk of harm."  Proving that a municipality had notice of a dangerous condition is notoriously difficult.  I imagine that the City in Smart claimed that it was unaware of the existence of the trench that caused Mr. Smart's crash.  It may have been very tough, perhaps even impossible, for the plaintiff to have proven that the City knew of the trench's existence before the crash occurred.  However, the appellate court determined that the cause of the crash was not a condition, but rather was the result of an ongoing activity being conduced by the City and, "Given that fact, Smart was not required to show that the City had notice of the hazard."  It was proper, therefore, that the trial judge provided Illinois Pattern Jury Instruction 120.02 which instructed the jury that,
It was the duty of [The City of Chicago], as an owner of the property in question, to exercise ordinary care to see that the property was reasonably safe for the use of those lawfully on the property.
The appellate court rejected the City's argument that the jury should have been instructed pursuant to Illinois Pattern Jury Instruction 120.08 which "requires a plaintiff pursuing a premises liability claim to prove that (1) there was a condition on the property that presented an unreasonable risk of harm, (2) defendant knew or in the exercise of ordinary care should have known of both the condition and the risk, (3) defendant could not reasonably expect that people on the property would not discover or realize the danger, (4) defendant was negligent in specific ways, (5) plaintiff was injured, and (6) defendant's negligence was the proximate cause of plaintiff's injury." 

Smart is an important decision for Illinois bicyclists because it puts municipalities throughout our state on notice that when you do roadwork in an area designated for bicycle traffic, they must consider the safety of bicyclists.  If they do not and a cyclist is hurt, then the municipality will be held responsible for the resulting harm.

It is unknown at this time whether the City intends to appeal the ruling to the Illinois Supreme Court.  For the moment though, Smart is the law of our state.  

Monday, October 7, 2013

68 Year Old Bicyclist Killed In Niles When Dog Owners Let Animals Run Free

Wladyslaw "Walter" Bujak, courtesy
The Chicago Tribune
A 68 year old male bicyclist has died of injuries he sustained after being knocked from his bike by unleashed dogs while riding on the North Branch Trail in Niles on September 27th.  Wladyshlaw "Walter" Bujak, an avid cyclist, was riding on the trail near Old Orchard and Harms Roads when the animals, their leashes trialing behind them, jumped at him, knocking him over, according to CBS2 Chicago.  

He suffered critical injuries and was knocked unconscious at the scene.  The owners of the dogs allegedly ran over to the fallen man, untangled the dog leashes from his bicycle, then left the scene.  Mr. Bujak died five days after the crash at Northwestern Memorial Hospital, according to CBS2 Chicago.  Police are looking for the dog owners. 

Aside from lacking basic decency for leaving the critically injured man behind, the dog owners, if found, may be liable for allowing their dogs to run free.  Illinois' Animal Control Act requires dog owners to maintain control of their pets at all times and assigns liability if they do not and someone gets hurt.  The Act states:
If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.
510 ILCS 5/16

This section of the Act makes the dog owner strictly liable for injuries.  That means that the owner's conduct need not be intentional nor even negligent for liability to attach.  The bottom line is that if you let your dog run free and someone gets hurt as a result, you are responsible for compensating the victim. 

Wednesday, October 2, 2013

Divided Illinois Appellate Court Expands Infamous "Boub" Decision

A divided Illinois appellate court has ruled that Illinois bicyclists are not intended users of alleys.  The important decision, handed down on September 27th, expands the Illinois Supreme Court's 1998 ruling in Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998) in which the Court held that bicyclists are permitted but not intended users of Illinois roadways, unless the road at issue is specifically designated for bike traffic, e.g. with signs, markings, etc. The notorious decision has meant that local governments cannot be held liable for cyclists' injuries on unsafe roads absent bike route markings

The recent decision in Berz v. The City of Evanston, 2013 IL App (1st) 123763, means that streets and roads are not the only areas where municipalities are free of responsibility for upkeep of areas where cyclists typically ride.  The case arose from an incident occurring in September, 2010 in which a bicyclist was injured when he struck a pothole in an Evanston alley running behind 1549 to 1555 Sherman Avenue, between Grove Street and Davis Street.  The pothole was 40 inches wide by 18 inches long by four to five inches deep.  The appellate court upheld the circuit court's dismissal of the cyclist's lawsuit against the City for failing to properly maintain the area because the alley was not specifically designated for bike traffic.  The Court noted that while bicyclists are permitted users of Evanston alleyways, the alleys are not intended for such users.  

Like the Boub decision itself, however, the ruling in Berz was not unanimous.  Presiding Justice Gordon dissented from the appellate court's holding, finding that alleys are intended for use by cyclists.  He stated,
In the Chicago area, it is common for garages to open onto alleys. It is also common, in the Chicago area as elsewhere, for people to store their bicycles, as well as their vehicles, in their garages. The obvious intended purpose of an alley that has garages opening onto it is to provide access to the things that people commonly store in those garages, such as bicycles.
Despite the fact that the paving of roads was initiated long ago thanks to bicyclists, Illinois remains an outlier when it comes to protecting cyclists from roads that are unsafe.  I am aware of no other state that has declared that paved roads -- and now alleys -- are not intended for use by bicyclists.  It is long past time for the Illinois legislature to step in and correct this judicial error.

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