Settlement In Case Arising From Bicyclist Struck By Drunk Motorist

We have successfully resolved a case arising from incident that occurred in September, 2009 when our client, a former Marine, was struck from behind by a drunk driver as he rode his bicycle near the 4900 block of South California Avenue in Chicago. The violent collision threw the bicyclist from his bike, rendering him unconscious. He suffered a fractured shoulder and numerous deep scars to his head, face and arm. Thankfully, he has since healed reasonably well from his injuries. The matter resolved for the full amount of available insurance from the at fault driver, and the maximum amount from the bicyclist's own underinsured motorist coverage.

Bicycle Accident Claim Successfully Resolved In Case Against Uninsured Motorist

Today we successfully resolved a personal injury case arising from a bicycle accident that occurred in October, 2009 on West Montrose Avenue, near Homer Park, in Chicago. Our client was riding his bike along the right side of Montrose when a left turning motorist struck him. We were able to track down a witness who explained that the driver was completely at fault for the incident. Though the driver was uninsured we were able to secure a settlement by making a claim under the uninsured motorist coverage of our client's own auto policy.

Our client's medical bills were initially paid by his health insurance provider. However, because settlement was procured not from a third party, i.e. the driver, but instead from our client's own coverage, no right of subrogation or reimbursement could be asserted, maximizing our client's recovery.

Illinois Municipalities' Overreaction to Liability Concerns Slows Progress On Bicycle Safe Roadways

America's roads were paved for the benefit and at the behest of bicyclists. "The Good Roads Movement was founded in May 1880, when bicycle enthusiasts, riding clubs and manufacturers met . . . to support the burgeoning use of bicycles." The movement is credited with pushing for paved roads before the reign of the automobile. In 1929, one of the founders of the movement, Horatio Earle, stated in his autobiography, "I often hear now-a-days, the automobile instigated good roads; that the automobile is the parent of good roads. Well, the truth is, the bicycle is the father of the good roads movement in this country. . . All these battles were won and the bicyclist was accorded equal rights with other users of highways and streets." Notwithstanding this history, twelve years ago the Illinois Supreme Court declared that streets and roads in our state are for motorized traffic, not bicycles. In its now infamous decision, Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998), 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. Unless a roadway is so designated, a local municipality is completely immune from liability for a bicyclist's injuries caused by roadway hazards. The Boub decision is an anomaly. Nowhere else in the United States has a state high court declared that bicyclists are not the intended users of the very paved streets for which their two-wheeling forebearers advocated. The fallout from the Court's decision has gone beyond merely barring individual bicyclists from pursuing justice. It has slowed progressive attempts to bring bicycle safe roads and streets to communities in Illinois. This broadly felt negative impact was predicted by one of the Court's own members. Justice Heiple, in his dissent from the majority holding in Boub, forcefully offered a vision into the future shaped by the misguided ruling of his brethren:

The principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs.

Boub, 183 Ill.2d at 539-540 (J. Heiple dissenting).

Sadly, Justice Heiple was right.

Some suburban municipalities in the Chicagoland area are resistant to creating bicycle lanes in their districts out of fear that doing so could expose them to liability under Boub, according to John O'Neal, Transportation Planner for the Chicago Metropolitan Agency for Planning (CMAP). John is one of the folks at CMAP responsible for developing a comprehensive regional transportation plan to include the counties of Cook, DuPage, Kane, Kendall, Lake, McHenry and Will. Part of the plan is to include roadway bicycle lanes. Though some municipalities in these counties have created designated bike lanes -- Chicago being the most obvious example -- John tells me there has been resistance from others and that the holding in Boub has been cited explicitly. The effect of that decision has been felt in other parts of the state as well. According to Ed Barsotti, Executive Director of the League of Illinois Bicyclists, "While we’ve seen quite a few towns (especially in urbanized areas) moving ahead in recent years, plenty of others are still stalled by the liability disincentive. In rural areas, the vast majority of county highway departments and townships are completely scared by the issue."

How great is the liability threat to a municipality anyway? The short answer is not very. I am a personal injury lawyer who represents accident victims in litigation, so I am not in the business of providing municipalities and their insurers defense strategy guidelines. However, one must face facts: It is awfully difficult for a victim to successfully pursue a claim against a local governmental entity for injuries caused by a roadway hazard even absent complete immunity protection. The obstacles are set forth in section 10/3-102 of the Local Governmental and Governmental Employees Tort Immunity Act. That law creates several substantial hurdles that must be overcome by a bicyclist injured due to a public roadway hazard. When suing a governmental entity the injured bicyclist must prove that:

1. The municipality was put on notice of the dangerous condition. The municipality had to know that a hazard existed within a reasonably adequate period of time for a fix to be implemented. However, if the municipality had a reasonably adequate inspection system in place for detecting bike lane hazards, and used due care in maintaining and operating that system, yet failed to detect the hazard, the municipality will be deemed not to have had notice.
2. The roadway condition that is alleged to have caused the injury was indeed dangerous.
3. The municipality was negligent in maintaining the bike lane.

Additionally, the bicyclist will likely have to defend against the notion that he or she was contributorily negligent in causing his or her injury.

Consider the following hypothetical: Smallville, Illinois has created a marked bike lane along the right side of its main thoroughfare. It has also implemented a program whereby a road crew inspects the entire distance of the bike lane on a monthly basis for hazards such as tree branches, garbage, holes, large cracks and the like. If a hazard is observed it is remedied within a reasonable period of time. One pleasant afternoon Sally Triathlete is riding her bicycle within a section of Smallville's bike lane. She is training for an upcoming competition so she is pushing herself, pedaling at a very high rate of speed. The day before Sally's training run Smallville's road inspection crew inspected the bike lane and saw nothing of note. The crew documented its inspection. That evening a violent storm blew through Smallville knocking a large tree branch into to the bike lane. During Sally's vigorous ride her front wheel struck the branch and she was propelled off her bicycle suffering serious injury. She subsequently hired an attorney wanting to sue the municipality for failing to properly maintain the bicycle lane. Tough case; one in which the prospect of success is low. Given the existence of a reasonable inspection system and the relatively short period of time between the creation of the hazard (the tree branch falling) and the collision between it and Sally's bike, Smallville will likely be found not to have had notice of the danger and likely will not be held liable for Sally's injury. Also, there will likely be serious questions raised about Sally's own negligence, particularly the speed at which she was traveling. I would frankly anticipate Sally having a difficult time finding an attorney willing to take her case.

If a municipality provides a service or amenity to its residents, then it must do so with care to avoid injury. However, both the Illinois legislature and Illinois' courts have consistently recognized the need to protect municipalities from litigation, lest they become financially overwhelmed by insurance premiums and the cost to defend against lawsuits. Attorney's who represent injury victims tend to only have success against local municipalities where injury is caused by the most brazen betrayal of the public trust. Municipalities in Illinois who decline to make their roadways safe for bicycle traffic for fear of liability following Boub are overreacting. Worse, their leaders are failing to protect the most vulnerable users of the roads, children and adults traveling by bicycle.

Representing The Competitive Cyclist In Personal Injury Litigation

Competitive cyclists are a hardy bunch. Years ago I did a bit of mountain bike racing. It was very amateur stuff and I generally got my butt kicked, but even at that level there was definitely a hard-ass, nothing-will-slow-me-down attitude among the competitors. Like any other athlete, bicycle racers get hurt. They crash, lose skin, break bones. But following an injury many of these folks will want to just rub some dirt on it then get right back on their bikes. I admire that attitude, but it can get in the way of a personal injury claim. Say, for example, you are out training before a big race, get hit by a car and suffer a shoulder separation and ankle fracture. You hire an attorney who brings a claim against the driver. Grimacing with each pedal stroke you participate in and finish the big race, though you don't do as well as in previous contests. When your attorney begins negotiating resolution of the case, the motorist's attorney (hired by the insurance company) pushes back against your demand for a significant settlement by pointing out that you raced soon after your accident; your injury must not be too bad.

Wait, what? thinks the bicyclist's attorney. How the heck did he know about the race? Many insurance companies will look up a competitive athlete's race history online to learn if they've raced soon after sustaining a injury. The defense will use this information to suggest that the injury wasn't very serious after all. In front of a jury of coach potatoes, you can imagine the type of impact this information may have.

The attorney of an injured competitive cyclist must take into account that the defense will learn his or her client's race history when devising a case strategy. The client must me made to understand that racing after an accident may negatively impact the case. Perhaps it should be avoided. If the race is just too important then care must be taken early in litigation to gather evidence to help a jury understand the competitor's mindset and to appreciate how a serious athlete endures pain. If the cyclist had to be taped, casted or otherwise specialty outfitted in order to race, take some photographs depicting this. Catalog race statistics and results from before the accident and be prepared to compare those to race results afterward. Was performance compromised by the injury? The bottom line is that the attorney must be ready to teach a jury (or a claims adjuster) about the athletes' mindset. An athlete endures pain, but suffers nonetheless.

Personal Jurisdiction Over A Foreign Bicycle Component Part Manufacturer

Bicycle components can and do fail, sometimes causing serious injury to the cyclist. Imagine flying down technical single track and having your stem break. Try to wrap your brain around what it would be like to have your steering tube fail while in a packed peloton. How horrifying to attempt to stop your fixed gear bike in city traffic and your chain breaks. When incidents like these occur causing serious injury a product liability lawsuit may be filed against the manufacturer of the failed component. Such lawsuits offer challenges aplenty to even the most experienced personal injury lawyer. One significant challenge is establishing personal jurisdiction over the manufacturer in Illinois.

Many, if not most, bicycle parts are manufactured overseas, often in Taiwan, China and Japan. That not necessarily a bad thing for the consumer. By my observation a lot of high quality parts are made in Asia, notably Taiwan and Japan. However, for the attorney attempting to haul one of these manufacturers into an Illinois courtroom, a defendant with such a far flung home base may present a challenge. One cannot simply decide to sue someone, whether an individual or corporation, in any old place. There must be some connection between the person or entity being sued and the place where the lawsuit is filed. It is the burden of the person filing the lawsuit, the plaintiff, to establish that the court where the suit is filed has personal jurisdiction over the defendant manufacturer. Without personal jurisdiction a court has no power to render a judgment against the putative defendant. A corporation need not have its headquarters in the state in order to be hauled into court here. A foreign corporation may submit to the jurisdiction of Illinois courts by simply doing some business in the state. 735 ILCS 5/2-209. The corporate defendant must have minimum contacts with the state to be sued here. In March, 2009 the Illinois Appellate Court had the opportunity to determine whether an Illinois trial court had personal jurisdiction over a bicycle component part manufacturer located in Taiwan. In Dickie v. Cannondale Corporation, et. al., 388 Ill.App.3d 903 (1st Dist. 2009), the court found that personal jurisdiction had not been established. The plaintiff in that case had been riding his cyclocross bike with "CODA" clipless pedals, a product of Cannondale Corporation, that were manufactured by Wellgo Corporation when he crashed and was thrown forward over the handlebars. He allegedly suffered injuies to this left hip and leg which twisted because his left foot did not disengage from the pedal. He sued Wellgo in Illinois for negligence in the way it designed and manufactured the pedals. Wellgo moved to have the claim against it dismissed on the basis that it had no minimum contacts with Illinois and that the court, therefore, had no jurisdiction over the corporation. In support of its motion to dismiss, Wellgo submitted an affidavit from its sales director which stated that:

Wellgo is in the business of designing and manufacturing bicycle pedals, including the clipless pedals in the case at bar. Wellgo's pedals are manufactured at a Wellgo facility in Taiching, Taiwan. After being manufactured, the pedals are sold and shipped to Cash Crest Co., and Wellgo has no further involvement with the distribution of the product. . . Wellgo is not licensed, authorized or registered to do business in any state of the United States. It further states that Wellgo, in Illinois, has never sold or shipped products, executed a contract, provided services, paid taxes, possessed assets, maintained a telephone or fax number, employed any individuals, attended trade shows or meetings, advertised, or otherwise solicited business in Illinois. 388 Ill.App.3d at 904-5.

In response, the plaintiff argued "that personal jurisdiction existed over Wellgo under a 'stream of commerce theory'." 388 Ill.App.3d at 905. He asserted that though Wellgo's entire operation was located outside of the United States, it was well "aware that Cannondale was an American company that distributed its products throughout the United States," including Illinois. In other words, Wellgo must have known its products would be marketed and sold in Illinois, thereby establishing minimum contact with the state. The appellate court was unpersuaded by this argument. It noted that "no evidence shows that Wellgo was otherwise aware of specifically where and how Cannondale's products were marketed or sold. Wellgo sold the pedals to Cash Crest Co., a Taiwanese trading company, and from there had no control over or knowledge regarding the distribution of the pedals." Id. at 908. The court also noted that "Wellgo never shipped the subject pedals directly to a distributor in the United States. . . Wellgo has no presence in Illinois." Id. Wellgo's dismissal for lack of personal jurisdiction was, therefore, upheld.

What Illinois lawyers representing injured bicyclists may take away from Dickie is that in order to establish personal jurisdiction over a component part manufacturer, the corporation must have some contact with the state greater than simply releasing its product into the general marketplace. When no such minimum contact exists, however, there is another option. In Illinois, a component part supplier can be held liable for distribution of a dangerous product into the stream of commerce under negligence and strict product liability theories. (A seller may not be held liable under a strict product theory, however.) Lewis v. Lead Industries Ass'n, 342 Ill.App.3d 95 (1st Dist. 2003). It is not clear from reading the Dickie decision whether Cash Crest Co. was added as a defendant to the lawsuit. But it apparently had direct contact with Cannondale thereby perhaps establishing contact with Illinois, where Cannondale certainly does a great deal of business. In any event, an inability to bring a remotely located component part manufacturer into the case does not mean that all is lost.

How To Avoid Getting Doored

Few things scare urban bicyclists more than the threat of being doored. This term refers to what happens when a vehicle's door swings open into the path of a oncoming bike. Obviously, injury or death are often the end result of an unavoided dooring. The thing that makes this threat so frighting is the suddenness with which it usually occurs. Both Illinois and Chicago law speak to this threat: "No person shall open the door of a vehicle on the side available to moving traffic unless and until it is reasonably safe to do so. . ." 625 ILCS 5/11-1407, 9-80-035. The City of Chicago even imposes a $150 fine for doing so. The penalty increases to $500 if a collision results. 9-4-025. Additionally, if a bicyclist is injured from a dooring incident a civil personal injury lawsuit may be filed against the wrongdoer.

But I would rather not have you as a client. There are things a cyclist can do to help avoid getting doored:

1. Don't ride too close to parked vehicles: This can be tricky. Your ability to ride outside of the "dooring zone" will depend upon the amount of space between parked vehicles and moving vehicles. That space will depend on factors such as whether the roadway contains a shoulder or bicycle designated lane. If conditions permit, you should ride at least three feet away from parked vehicles. Doing so will probably not take you out of the door zone (the average car door is nearly 5 feet wide), but it should help you swerve to avoid contact with a swung open door.

2. Give taxis a wide berth: When at all possible just stay the hell away from taxi cabs. Exiting passengers do not have mirrors with which to see an oncoming bicyclist, and few will crane their necks to look before opening the door. Any stopped taxi is a dooring incident waiting to happen. If at all possible swing way wide of them.

3. Look for signs: There are tell tale signs that a door may be about to open into your path. Look inside vehicle ahead of you. Look for figures moving inside that mean that the vehicle is occupied. Look in the side view mirror. You may be able to see the driver of the car, and whether he or she is looking at you.

4. Announce your presence: To help avoid a dooring at night you should ride with a blinking yellow or white light mounted on the front of your bicycle. A blinking light will help distinguish you from all of the other sources of illumination that exist in an urban setting. With a light, those drivers who do choose to look before opening their doors will have sufficient warning of your presence. Also, when riding day or night, if you see a door creeping open don't be shy about giving a loud holler to the doorer (doorist?). Do whatever you can to announce your presence.

5. Control your speed: Alter your speed based upon the risk posed from dooring. If you are riding through a tight spot with numerous parked cars to your right, slow down. Sometimes you just will not have the space to swerve away from an opening door and you will need to stop to avoid a collision. Be aware of the potential for danger and act accordingly.

Dooring usually ends badly. That obvious fact noted, always ride relaxed. Riding in constant fear of what could or may happen to you is no fun and will probably increase your chances of getting into some sort of accident. Excessive fear tends to lead to bad decision making on the road (and, if I may, in life in general). However, you should ride aware of the dangers that exist. By doing so you will likely enjoy a lifetime of safe, fun urban cycling.

Click here to watch a dooring video made in Chicago.