Increased Severity of Bicycling Injuries In The U.S.

An increase in bicycle commuters combined with a largely woeful biking infrastructure may be the cause of more severe bicycling injuries in the United States, according to findings presenting a the annual meeting of the American College of Surgeons in Chicago yesterday. Certainly the increased enthusiasm about bicycling in the U.S. is a positive for the general health of Americans and for the environment. The data is now in, though, which suggests that our infrastructure simply must become more bicycle friendly if the current rate of bicycle use is to be sustained.

A report about the findings can be found at Reuters.com with quotes from the lead study researcher.

Safety Commission Orders Recall of Electra Bicycles and Schwalbe Tires

The U.S. Consumer Product Safety Commission today announced recalls of Schwalbe brand bicycle tires and Electra bicycles. The Commission recommended that consumers immediately stop using Schwalbe Ultremo R Bicycle Tires because tire layers could separate causing the inner tube to rupture. The tires were sold at bike stores and online between April and May 2009 for about $75. The Commission also recommended that consumers stop riding 2009 Electra bicycles with front trays or baskets. The company that makes these bikes has received fifteen reports of the front tray or basket coming loose and contacting the front tire during use, creating a fall hazard.

A Website That Could Help You Ride Safer

With information we can avoid danger and affect positive change. As bicyclists who ride through the crowded city we rely on our skill and experience to get us from point to point safely. We also hope. We hope that drivers give us the three feet of space the law requires. We hope that drunk drivers stay far from us. We hope that a sink hole has not cropped up in the bike lane since we were last there. We hope that lady in the SUV on her cell phone with three kids trying her nerves from the backseat sees us. Hope is a good thing. But when my health and safety are on the line give me information over hope any day. Roadguardian.com provides cyclists with the means to report and receive information about danger spots so they can ride smarter and safer. I was made aware of this helpful site by a post last week at www.bikerumer.com. Roadguardian.com provides cyclists with information regarding:

• Where have cyclists experienced close calls?
• Where have cyclists been hit and injured?
• Where have cyclists been killed?
• Where have dogs chased cyclists?
• Where are the pot holes located?
• Where have cyclists been harassed by motorists?

At the moment the site has only two incidents listed in Chicago. For our city, the site is not yet a useful resource. But if enough bicyclists post incidents on the site it certainly can be. With accidents and incidents posted on the site perhaps trends will become clear and danger areas can be corrected or simply avoided. It is up to bicyclists to make this a useful tool. Let's get to work.

In One City, A Proposal To Require Bicycle Licensing

In the online addition of Bicycling Magazine, Bob Mionske writes about an ongoing effort in Toronto to require bicyclists to be licensed and helmeted to use the roadway. Nobody tell the Daley Administration, which has never seen a new revenue source it didn't like. On a serious note, I could be persuaded that licensing bicyclists is a good idea if I could be assured that license fees would be used to fund a Copenhagen style biking infrastructure. That seems unlikely, though. Revenue raised by requiring bicycle licenses probably would not pay for much beyond that needed to set up and run the licensing program itself.

Cyclist Injured Near Montrose and California

A bicyclist was injured on October 5th when he was struck by a car near Horner Park, just east of North California Avenue and West Montrose Avenue in Chicago. We have been retained to represent him in his claim against the negligent driver. Our client was riding his Trek road bike eastbound on West Montrose at the time of the collision. As he approached a driveway leading into Horner Park, riding along the right side of the street, he saw a silver car stopped in the westbound lane of Montrose angled as if waiting to turn into the driveway. Because the driver was stopped he fairly assumed that she saw him and was waiting for him to pass before making her turn. However, just as he reached the driveway the car darted into his lane and struck his bicycle, sending him flying forward onto the hood of her car. He was immediately groggy, having smacked his head. He also had pain shooting through his wrists which accepted much of the impact. Bizzarly, the driver exited her car and accused our client of being some how at fault for damaging the hood of her car. She then left the scene before police arrived without providing her name, address and insurance information. Luckily, there was a witness to the accident and the driver was later found.

Our client was treated after the incident at Swedish Covenant Hospital where he was diagnosed with two badly sprained wrists. The injury, for which he is forced to wear immobilizing splints, has understandably kept him from his job as an airport baggage handler. Our firm is taking this matter seriously and will aggressively pursue the at fault driver and make sure she is held accountable.

A Pile Of Dirt, A Bicycle and A Duty of Care

For a kid there are few things more fun and exciting than a bicycle and a pile of dirt. It's messy, it's exciting and it's simple. The problem, however, is that it often presents a young child with some serious danger. Speaking from the experience of my much younger self, a pile of dirt offers a kid the chance to fly, the mound providing a ready-built ramp for aerial tricks and stunts. Unfortunately, the fun sometimes ends with broken bones, serious cuts and gashes, sprains and even head injuries. I remember an incident from my own childhood in which a friend and I created a ramp from a pile of dirt at the bottom of a steep street. I went barreling down the road, onto and over the dirt pile. I remember being terror-struck as I flew through the air and eyed a bunch of cinder blocks haphazardly strewn in my poorly anticipated landing zone. The impact against the hard blocks broke my leg.

What duty does the private landowner owe to children engaged in this sort of bicycling on his or her property? The answer boils down to foreseeability. In Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 886 N.E. 543 (5th Dist. 2008) an 8 year old boy was seriously injured while using a pile of dirt as a bike ramp in the parking lot of a privately owned playground that was open to the public. In response to the lawsuit filed by the boy's parents, the defendant landowner asserted that the case should be dismissed because the pile of dirt was an open and obvious danger that even an 8 year old could appreciate. If the child chose to risk launching himself through the air via the dirt mound, the landowner felt it should not be held responsible where injury resulted. The problem for the landowner, however, was that it knew ahead of the boy's accident that children were legally on its property, engaged in dirt jumping and that they were likely to get hurt while doing so. The appellate court noted that while the dirt was perhaps open and obvious, an 8 year old boy may not fully appreciate the danger of using it as a bicycle ramp. In any event, the Court stated that the ability of the boy to have recognized the danger was not the only issue in determining whether the landowner had a duty to correct or warn against the hazard. The Court stated, "In order to find that a landholder owes a duty to a child injured on its premises, a court must also find that (1) a dangerous condition exists on the property, (2) it is reasonably foreseeable that children would be present on the premises, and (3) the risk of harm to children outweighs the burden of removing the danger." Grant, 381 Ill.App.3d at 670. The Court found it damning to the landowner that the park's commissioner testified that he had seen children jumping their bikes on the dirt, had shooed them away because he recognized they could get hurt and observed them return to the mound with their bicycles despite his admonition. In light of that knowledge, the Court held that the danger to the boy was foreseeable and that the landowner, therefore, owed him a duty to remove the hazard, especially given the nominal cost involved in dismantling the pile by just spreading the dirt around.

In Grant, the boy was legally permitted to be on the property at the time he was injured. But what if he had been a trespasser? Again, knowledge is key. Given the facts presented in that case, the landowner still could have been held liable. The general rule in Illinois is that a landowner owes no duty of care to trespassers except to avoid purposefully injuring them. However, our courts have carved out a "frequent trespass exception" to this rule. "Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of its activities, where the landowner knows, or should know from the facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size." McKinnon v. Northeast Illinois Regional Commuter Railroad Corporation, 263 Ill.App.3d 774, 777, 635 N.E.2d 744 (1st Dist. 1994). A failure to object to trespassers coming on the land may be viewed as "tacit permission" for them to do so. The landowner may be liable to such "tolerated intruders" for injury "where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it." Id. at 778. The facts presented in Grant were that the landowner knew the boys continuously came onto its property specifically to jump their bikes on the pile of dirt. The park commissioner had seen them do so on more than one occasion. The commissioner had asked the boys to leave on one occasion, but on others he failed to do so. He testified that he saw the boys return to the pile with their bikes even after he asked them to leave. After the boy suffered his injury the dirt pile was spread out with little cost or effort. Pursuant to the "frequent trespass" exception, the landowner in Grant could have been held liable under these facts even if the injured boy had been a trespasser. The owner know the boys continuously entered a specific portion of its property to play on the dirt mound. Also, the cost of preventing the harm, i.e. by flattening the pile, was slight.

Children on their bicycles tend to be endlessly creative, and that's a good thing. Kids will always gravitate toward danger. As parents, we of course hope they will survive their natural inclinations for fun and adventure seeking. Landowners must recognize that they simply cannot turn a blind eye to children playing on their property. There is no need to be the angry neighbor who constantly yells at children to stay away. At the same time, if there is a dangerous condition on your property that you know children encounter you must take reasonable steps to correct the hazard.

Employers Should Be Liable For Punitive Damages When Employees Cause Serious Injury While Driving, Texting, Talking

By referring to distracted driving as a "deadly epidemic" on Wednesday, U.S. Transportation secretary Ray LaHood was hardly being controversial. Every year 1.2 million traffic crashes involve drivers not paying attention, according to the National Highway Safety Administration. Not surprisingly drivers' use of cell phones and computers for talking, texting and emailing is often the cause of such inattention. Drivers from virtually all walks of life are undoubtedly guilty of engaging in this dangerous behavior. A lengthy article in today's New York Times focuses on the extent to which employees attending to work related matters while driving, whether checking email, following up with a client or checking in with a dispatcher, contribute to this problem. The article provides some chilling accounts of the repercussions of doing so. On a positive note, however, it states that some large companies are starting to recognize the danger posed by their multitasking, distracted employees while on the road. In response, some are banning employees from using phones and computers while driving. The fear of litigation arising from injury or death caused by a distracted employee on a cell phone is a motivating factor behind such self-imposed bans.

Our state, and some cities and municipalities in Illinois, is keen to the dangers posed by distracted driving. Recently, Illinois imposed a ban on texting while driving. The City of Chicago presently requires cell phone users to use a hands free device while operating a vehicle. These laws, while welcome, are difficult to enforce. Also, the pressure that many employees, both white collar and blue, feel to respond to work emails, phone calls and text messages while on the road may be far more compelling than the remote risk of being ticketed for doing so. One way to compel employers to institute cell phone bans is to put them on notice that a failure to institute such a policy could hit them hard where it hurts, in the purse. We have reached a point where the dangers of driving while using a cell phone are so thoroughly documented and well understood that use of a cell phone while driving should support a cause of action for willful and wanton misconduct . An employee who causes an accident due to inattention from cell phone use that results in serious injury or death should result in the employer being held liable to pay very substantial punitive damages to the victim or the victim's family. In my opinion, existing Illinois law supports this proposition.

Negligent conduct is different from that which rises to the level of being "willful and wanton". Negligence is a failure to act as a reasonable person would under similar circumstances. A victim harmed by conduct that is "merely" negligent may not collect punitive damages from a defendant. On the other hand, conduct is willful and wanton where it "shows an utter indifference to or conscious disregard for the safety of others." I.P.I. 14.01. "A defendant is willful and wanton when he has actual or constructive knowledge that his acts, or his failure to act, create a high probability that others will incur serious physical harm, and the defendant nevertheless recklessly disregards this danger." McDermott v. Metropolitan Sanitary District, 240 Ill.App.3d 1, 28, 607 N.E.2d 1271 (1st Dist. 1992). It is well established in Illinois that an employer may be held liable for both the negligent and willful and wanton conduct of its employee where the employee was acting within the course and scope of his employment. "A willful and wanton cause of action based on a respondeat superior theory is similar to a negligence action, except that the level of the defendant's conduct is more than mere negligence, but less than intentional conduct. The allegations of a willful and wanton claim must set forth facts to establish that the employee, within the scope of his employment, acted with willful and wanton disregard, or conscious indifference towards" the injured person. Ledesma v. Cannonball, Inc., 182 Ill.app.3d 718, 726, 538 N.E.2d 655 (1st Dist. 1989). In plain language, where an employee is held to have acted recklessly, his employer is automatically held to have done so as well, so long as the employee was undertaking his ordinary duties and responsibilities in furtherance of his employer's business at the time. "Such a claim may . . . give rise to punitive damages." Id.

To the best of my knowledge, no Illinois court has considered whether cell phone or computer use while driving may be considered willful and wanton behavior. But the evidence now exists that could reasonably lead a jury to conclude that it is. Our own Illinois Secretary of State, Jesse White, recognizes that driving while operating a cell phone is reckless. According to a recent Chicago Sun-Times article, White, who spearheaded Illinois' new anti-texting law, said, "Who can drive while putting their thoughts together, hitting the right keys and sending a message? That's a formula for someone getting hurt of killed." Three years ago a group of University of Utah psychologists "published a study showing that motorists who talk on hand held or hands-free cellular phones are as impaired as drunken drivers." If driving while intoxicated demonstrates a "reckless disregard for the safety of others" (and who would argue otherwise), then surely driving while texting, talking on the phone or computing demonstrates the same measure of recklessness. Employers must explicitly communicate to their employees that they are not to operate cell phones or computers while driving. Hopefully, doing so will reduce the number of employees who do so and will cut the number of drivers, pedestrians and bicyclists killed and seriously injured each year by inattentive driving. Only when employers formally institute a policy banning cell phone use should they be able to escape liability for punitive damages where an employee using a cell phone for work a related purpose while driving causes serious harm.

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