City of Chicago Fails In Attempt to Immunize Itself From Responsibility For Injuries Caused by Bike Lane Hazards

In a hearing last week in the Circuit Court of Cook County the City of Chicago sought to have all of the bicycle lanes installed throughout the City declared "recreational facilities."  The effect of this creative legal maneuver would have been to immunize the municipality for injuries to bicyclists caused by the City's failure to keep its bike lanes safe for riders.

The matter arose from a lawsuit filed against the City where a Chicago bicyclist was . . . [Read more.]

Cook County Jury Finds For Injured Bicyclist Ticketed By Police

After deliberating for more than five and a half hours on Friday, a Cook County jury decided to compensate a male bicyclist injured in a 2011 collision with a SUV in Palos Heights.  Our firm represented the cyclist at the week long trial.

The case was a tough one and the verdict of $37,000 reflects the jury's finding that our client contributed significantly to cause the crash.  Police had ticketed the cyclist at the scene for causing the collision.  The defendant driver's insurance company had sent the cyclist a bill for the substantial damage done to his Lexus SUV.  No settlement offer was ever made by the defense.

The crash occurred at around 8:00 a.m. on May 21, 2011 at the intersection of Harlem Avenue and 131st Street at the northern edge of the Burr Oak Woods Forest Preserve.  The then 59 year old cyclist was riding his bike on the Tinley Creek Bike Path which winds through the preserve.  The defendant driver, a retired surgeon, and his wife were driving north on Harlem.  The bike path crosses Harlem a few feet south of 131st.  Here is a depiction of the intersection used at trial:

The cyclist approached Harlem from the east.  When he reached the crossing, marked with thick white diagonal lines, he saw that the light controlling cross traffic was red so he proceeded.  At the same time, the defendant was stopped in the left turn lane on Harlem waiting for the light to change so he could proceed west on 131st Street.  As the cyclist entered the crossing, the left turn arrow controlling the driver's lane turned green and he proceeded.  The bicyclist struck the left side front quarter panel of the vehicle and fell to the ground breaking his left wrist.  The break was bad, requiring surgery.

Our biggest challenge at trial was overcoming the defendant's assertion that our client knew the traffic signal was changing and attempted to speed across the intersection to beat the light.  The defendant's attorneys had two important pieces of evidence to support that position.  One, was the testimony of a witness, an emergency medical technician, who happened to be in an ambulance stopped at the intersection facing east on 131st Street at the time of the crash.  He testified that while his vehicle was stopped at a red light at 131st and Harlem he saw the man on the bike cross at what seemed to be a high rate of speed just before the collision.  The implication was that if the ambulance had a red light then so must have the cyclist coming from the opposite direction.  Secondly, the defendant argued that the extensive damage to the SUV and the severity of the bicyclist's injury suggested a relatively high speed collision; again, supporting the notion that the cyclist was trying to beat the light.

Honestly, we were worried.  It was based on the witness's observations that the responding police officer laid fault at the feet of our client.  Would a jury do the same?

The jury never heard that the cyclist was ticketed.  The citation was thrown out and generally the fact that one party or another received a traffic ticket is not admissible evidence at trial.  It is the province of the jury to determine fault based on the evidence, not that of a police officer making a snap decision based on someone's observations.  We were able to demonstrate that the witness was very unsure of what he saw and when he saw it.  Also, the law and evidence strongly supported our position that the driver failed to look before proceeding into the intersection.  The witness felt certain that his vehicle was stopped at a red light facing east on 131st Street when the collision occurred.  However, he could not say that the ambulance had quite reached the intersection when the cyclist first started across Harlem.  This allowed us to argue that our client entered the crossing when it was still legal for him to do so, but that he simply got caught in the change of lights.  During my closing argument I showed the jury a blow up of a portion of the Illinois Vehicle Code which instructs drivers how they must proceed when facing a light that has just turned green.  Section 11-306 requires that a motor vehicle facing a green arrow signal, "Shall yield the right of way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection."  Certainly bicycles are "other traffic."  Since the point of impact was with the front side of the SUV, had the driver looked before proceeding the cyclist would have been visible to him just a couple of feet to his right.  Therefore, he either did not look, despite his insistence to the contrary, or he looked but did not see our client.  Either way, I argued that the defendant violated section 11-306 and was negligent.

The jury clearly had a hard time figuring this case out having spent so long deliberating.  In the end they reached a compromise verdict.  They felt that the driver was indeed negligent, but so was our client.  It is hard to see the result as unfair.  

Getting caught in the change of lights is a consistent problem for bicyclists.  When crossing a wide intersection -- Harlem at 131st is five lanes wide -- there is a good chance that you will get caught in the change of lights.  Bicyclists should be mindful of any crossing countdown, if there is one, before starting into an intersection.  Consider whether your light will remain green, or at least yellow, until you reach the other side.  On the other hand, drivers simply must look before proceeding.  The law, and common sense for that matter, makes it clear that a driver cannot simply charge forward on a green light.     

Bicycle Crashes and Brain Injury

Courtesy of Sunday Is For Lovers

It may not take much to injure that gelatinous cauliflower inside your cranium.  Suffering even mild trauma to your head can begin a process that leads to years of muddled thinking, spotty memory and poor focus, among other things.  That was the message delivered and received at a conference on traumatic brain injury that I attended last week in San Francisco, hosted by the North American Brain Injury Society.

I am not going to jump up and down, telling bicyclists to wear helmets.  That is a choice to be left to the individual.  On the one hand, the medical profession believes that helmet use will reduce the risk of serious head injury.  On the other, helmets may do a better job of protecting against some kinds of injuries more than others.  Also, laws requiring helmet use may reduce the rate of bicycle use.  So, wear a helmet, or do not. Brain injuries can and do happen to cyclists with and without helmets.

A traumatic brain injury is a disease process that begins with an event, i.e., an impact, a skull fracture, a cut or laceration.  Having your head whacked may begin a long term condition that never goes away, and may indeed get worse over time.  Often, the severity of the brain injury is measured by the size of the whack, the degree of impact, the amount of blood.  This is wrong.  The severity of the injury is to be measured by the effect it has on the injured person's life over time.  Sometimes a seemingly minor whack can have profound consequences.  These consequences may include problems with attention and concentration, poor memory, problems with initiating a task, problems with organization, difficulty stopping a particular behavior, increased anxiety, mood changes and problems with impulse control.  There may also be an increased risk of Alzheimer's type dementia and/or earlier onset of age related dementia.  One need not lose consciousness or suffer intracranial bleeding to have sustained a brain injury.  The damage is often at the microscopic level that cannot been seen on CT or MRI scans.  It is enough, that there was an incident, an impact, and symptoms.

Once concern has been raised by the presence of symptoms, specialized medical testing can be run to determine if there is indeed a traumatic brain injury, or what is termed neurocognitive disorder due to traumatic brain injury in the latest edition of The Diagnostic and Statistical Manuel of Mental Disorders (DSM-5).  This is done by having a properly trained expert run neuropsychological testing.  This battery of tests is designed to run the test taker through a series of tasks used to measure particular functions that are know to be linked to a particular brain structure or pathway.  If testing reveals a problem with a particular function then that is powerful evidence of damage to a specific area or area(s) within the brain.  Specialized radiological testing can also be done to uncover additional objective findings of brain injury.  Diffusion tensor imaging (DTI), sometimes also called diffusion MRI, looks at microscopic details about the brain's tissue architecture to highlight areas of injury.  These tests are very helpful in assisting physicians and psychologists to determine where the brain has been harmed and how.

If you are involved in a crash it is important for you and those close to you to pay attention for possible signs and symptoms of a significant brain injury.  Some 15 years ago the first case I ever tried involved a mild traumatic brain injury.  The defense in that case asserted that because my client looked fine and sounded fine he was fine.  It was only after speaking to the people who new him best, his wife and children, who discribed disconcerting changes in the man's behavior since the incident that we worried that the injury was more severe than initially thought.  We had neuropsychologists test him and learned that he indeed sustained a major brain injury.  Do not hesitate to follow up with your physician if you are continuing to have problems even several months following a crash.  He or she may decide to refer you for testing to determine whether you have a brain injury.

No Ticket, No Compensation?

The following originally appeared in Urban Velo as part of my regular column, Cycling Legalese:

If you’re involved in an automobile/bicycle collision it is in your best interest to call the police and get a report, but how will it impact a potential claim for injury or damage compensation if the police officer doesn’t issue a ticket to the driver on the spot?

Q:After I was hit by a car, the police did not give the driver a ticket. How will that affect my ability to receive compensation from the driver for my injuries?

A traffic ticket issued to a driver for causing a crash may aid a bicyclist’s personal injury case. But, failure of the police to ticket a driver will generally have no impact at all on the cyclist’s case.

Most police officers try hard to do the right thing. But strip away the badge and the uniform and what you are left with is a fallible human being. After a crash, you may know with cosmic certainty that the driver that hit you was in the wrong. Police officers arriving after the fact will not have a clue about what happened. They may have a pissed-off, injured bicyclists telling them one thing, a frustrated, nervous driver telling them another, and a mess of backed-up city traffic. Figuring out what happened and who was at fault may not be knowable, and/or may be the least of their concerns. Sometimes the responding officer will take his or her best guess as to what happened and issue a ticket. Let the judge sort it out. Other times a cop will throw his or her hands up and keep the ticket book tucked away.

To be sure, I sometimes shake my head when the police fail to ticket a driver. It is astonishing when a driver is not ticketed, for example, after dooring a cyclist in broad daylight. Other times I suspect that a police officer holds an anti-bike prejudice. Just the other day, I was in court in a suburb of Chicago defending a bicyclist who was hit from behind by a vehicle whose driver crossed a double yellow line and hit him as the cyclist began a left turn. The officer ticketed the cyclist for failing to signal his intent to turn, even though the officer documented that witnesses reported that the cyclist had indeed signaled. The judge ultimately threw out the ticket, but, sheesh!

When a driver is ticketed after a crash, he or she will generally be given a date to appear in court and enter a plea, guilty/not guilty. It is very important that the bicyclist appear at that court date. The cyclist will be the complaining witness, without whom the prosecution will not be able to prove a traffic violation (assuming the issuing police officer did not actually witness the incident). The officer that wrote the ticket will generally not be permitted to testify as to what someone else said happened. Such testimony is considered hearsay and cannot serve as a basis for a conviction. It is a good idea to arrive at the hearing early so you or your lawyer can seek out the prosecutor and let them know that you are present and ready to testify against the driver. In city traffic court the prosecutor will have about a zillion cases he or she is dealing with at once and will likely appreciate the presence of a complaining witness willing to cooperate and explain what the case is about. Depending on what the presiding judge generally allows, the prosecutor may then seek out the driver in the courtroom and explain their options. Sometimes an agreement to plead guilty will result in a lesser punishment for the driver then a finding of guilt by the judge after a time consuming trial. In my experience, many drivers take that deal. This is important. A plea of guilty in the criminal/traffic case is admissible in evidence as an admission in the subsequent civil/personal injury case. The driver will have a very difficult time wiggling free from a claim of negligence after pleading guilty. However, a finding of guilt (or not) at trial is not admissible in the personal injury case. In most jurisdictions a jury considering the personal injury case would never learn of the earlier verdict arising from the traffic citation.

So, if the driver is ticketed after a crash, great. Go to the traffic citation hearing. If the driver does not get a ticket, do not sweat it.

Lake Villa Bicyclist Killed By Motorist On Her Birthday

A 34 year old female bicyclist was killed by a driver in Lake Villa yesterday, according to The Chicago Tribune.  It had been her birthday.

The fatal crash occurred at around 2:15 p.m. as the cyclist, Anna Harvey, was riding southbound on Route 45, north of Grand Avenue.  A 2000 Toyota Camry, also traveling south on Route 45, struck her, according to the Tribune.  Ms. Harvey was pronounced dead at Advocate Condell Medical Center in Libertyville some time later.

Few details have been reported regarding how the collision happened.  As of yesterday evening no charges had been filled against the driver, though "the accident remains under investigation by the Lake County Sheriff's Office accident investigation unit," the Tribune reported. 

Lexus Driver Strikes Bicycle Delivery Rider, Leaves Scene

The bicycle delivery rider was left in the road wondering why the driver of the Lexus SUV that hit him had been in such a rush.  He was also left with a badly fractured foot.

On December 2, 2012 at around noon, the bicyclist was riding westbound near 2348 West Lawrence Avenue approaching the intersection with Western Avenue.  He was coming from the nearby Jimmy John's Restaurant where he worked as a delivery rider.  He had been traveling in the dedicated left turn lane for several feet when suddenly he was clipped by a 2011 Lexus SUV traveling fast also in the left turn lane.  The impact was heavy, throwing him off his bike and fracturing his foot in two places.  He wonders if the driver, who left the scene before Chicago police arrived, was rushing to beat the green left turn light.

The bicyclist was taken to Swedish Covenant Hospital nearby where the fracture was diagnosed.  Presently, he is convalescing at his parent's home in Michigan awaiting word on whether he will require surgery to place metal pins in his foot.

My law firm has been retained by the cyclist.  If you witnessed this terrible crash I would appreciate it if you contacted me at 312.803.0128 or via email at bhk@mybikeadvocate.com.

Chicago Bicyclist Struck By Semi To Undergo Pelvic Reconstruction, Battling Infection

The female bicyclist struck by a semi tractor trailer on Friday afternoon is fighting infection and is to undergo surgery to repair a shattered pelvis at Loyola University Medical Center, according to a reader of this blog who contacted me last night via email.  The bicyclist, Terri Cenar, was struck at around 1:45 p.m. on November 4th and initially taken to Northwestern Memorial Hospital.  No details have been reported regarding the cause of this incident.  Prayers for her recovery have been requested.

Poking around online revealed Ms. Cenar to be an avid cyclist and frequent bike commuter.  She is a current or former fitness instructor.

Bicycle Seriously Injured By Semi On Near Northside

A semi tractor trailer struck and seriously injured a female bicyclist near Chicago Avenue and LaSalle Street on Friday afternoon, November 4th.  The women was reportedly taken to Northwestern Memorial Hospital following the collision.  The incident occurred at around 1:45 p.m.  No information is presently available regarding the cause of the crash or how the victim fared over the weekend.

After A Bike Crash, Go To The Damn Hospital

I've been representing injured people for some 15 years and if anything drives me nuts it is when someone blows off going to the hospital after an accident.  This frustration was driven home last week when I read about the death of Francisco Moreno.  After he was struck by a van while riding his bicycle a trip to the hospital was delayed until he lost consciousness at home many hours after the incident.  One has to wonder if he would be live today if he had been taken to the hospital right after the crash.

Let me be succinct, if your are involved in a bicycle crash and some part of your body hurts, go to the damn hospital.  The seriousness of your injuries may not be immediately apparent.  After a crash your adrenaline may be flowing.  You may not be thinking straight, so just play it safe a get to the ER.  This is especially true if you even lightly hit your head, with or without a helmet.  If it turns out that you are fine, good.  Don't worry about wasting your time or anyone else's time.  Don't feel embarrassed.  Just do what has to be done to rule out a serious injury.

Aside from protecting your own health, seeking immediate medical care following a crash will help you or your attorney later if a claim or lawsuit arises from the incident.  Time and again I see insurance companies fail to take seriously a claim brought where the injured bicyclist did not seek treatment right away following a crash.  Their thinking is, how serious could the injury be if he/she didn't go to the hospital.  Insurance adjusters tend to be cynical people.  Delayed medical treatment tends to raise a red flag in the adjuster's mind:  Maybe we're being scammed.  Maybe the injury happened after the bike accident.  Don't give an insurance company any reason to be doubtful about your claim and the cause of your injuries.  Seek immediate medical treatment.

There are all sorts of reasons, in my experience, to explain why the bicyclist blows off a trip to the hospital after a crash.  Lack of medical insurance coverage is one big reason.  All I can say is cost is just something you'll have to worry about later.  Take care of yourself first.  A hospital ER will not turn you away for lack of insurance.  Also, most hospitals will work with you on a sensible payment plan if you cannot afford to pay the bill.  If you have a claim against an at fault driver, the hospital will lien your claim and your lawyer will help you make sure your bill is paid at the end of your case.  Whatever concerns or fears you might have about going to the hospital after a crash, remember Francisco Moreno.

Sixteen Year Old On Bicycle Killed At Chicago Intersection

Sixteen year old Dion Harris of the 1600 block of North Kolmar Avenue was killed last night when he and a motor vehicle collided as he rode his bicycle near the intersection of West Grand Avenue and Kolmar Avenue in Chicago, according to the Chicago Breaking News Center.  Chicago Police apparently report that the boy ran a stop sign, causing the crash.  However, few facts have been reported.  The News Center states that, "The youth was taken in very serious condition to the hospital where he was pronounced dead."  No witnesses are identified.  Presumably, the only version of events was that of the driver.  Also, the News Center reports that the boy "was riding his bike in the 4500 block of West Grand Avenue when he disobeyed a stop sign at Kolmar Avenue and ran into the middle of traffic."  It adds that, "The teen struck a vehicle driving on Grand near Kolmar.  There are no stop signs or traffic lights at that intersection in the direction the vehicle was traveling."  This report makes it sound like both Harris and the driver where traveling on West Grand Avenue at the time of the crash.  However, the story also gives the overall impression that the bicyclist and the driver approached the intersection perpendicular to one another.  At the intersection, Kolmar Avenue is controlled by a stop sign.  No sign controls traffic traveling on West Grand.

Harris' died about one block from his home.  Hopefully, additional facts will be brought to light in the coming hours and days.

Bicyclist Killed in Wheeling, Illinois Leaving Wife, Two Children

A 43 year old man was killed in Wheeling, Illinois on Monday afternoon when he was struck by a truck as he rode his bicycle along Wolf Road.  The man, Alfonso Delgado Balderas, is survived by his wife and two children.  No witnesses have been identified by either the Chicago Breaking News Center or Journal Online.  However, the driver of the truck apparently recounted to police that Mr. Balderas was riding on the right side of Wolf just south of Messner Drive when he attempted to turn left.  The truck driver stated he could not avoid hitting him.

Police are still investigating.

Fox Chicago Highlights Dooring Danger and Illinois' New Efforts To Record Incidents

State to Track 'Dooring' Accidents Involving Cyclists: MyFoxCHICAGO.com