A Call To Arms Against Holes

There are some huge potholes out there.

Duh, this is Chicago at the end of winter, and particularly brutal winter at that.  Still, I don't remember seeing so many large craters distributed throughout the city such as there are right now.  Many of these pose a serious threat to bicyclists.  Many occupy bike lanes and areas designated for bike travel.  North Clark Street in Lakeview comes to mind, as does North California Avenue in Humboldt Park.  Hit one of these craters with your front wheel and you may end up picking your teeth up off the ground, or worse.  This is no joke.

The city has a duty to maintain its property in a reasonably safe condition for permitted and intended users of its property.  Under Illinois law a bicyclist is generally considered both a permitted and intended user of an area explicitly marked for bike traffic.  To be held liable for a dangerous condition in a bicycle lane that causes an injury, a municipality must have notice that the condition existed.  The City of Chicago does not owe a duty to its citizens to constantly inspect its roads, streets and alleys for danger.  Our transportation infrastructure is just too enormous to allow such an inspection system.  However, once the City is aware of a dangerous condition on its property, i.e., in one of its bike lanes, then the City must take reasonable steps to fix it.  What that may mean exactly will depend on the specific circumstances.  Our law firm is presently suing the City of Chicago on behalf of a bicyclist who was seriously injured when the front wheel of his bicycle struck a large hole in a bike lane on S. South Shore Drive on the City's South Side.  We have alleged that the City was made aware of the hole's existence, and of its propensity to become hidden by standing water, many months before the crash thanks to a call made by a concerned resident who lived nearby.  

Putting the City on notice of a dangerous roadway condition is important.  Ideally, the City will respond and fix the problem before someone gets hurt.  If it fails to do so,  proof that the City was notified yet failed to act in a timely manner can be used to preserve the injured cyclist's right to compensation for his/her harms and losses.  So, how can the average cyclist help out?  To borrow a ubiquitous slogan: If you see something, say something.  There are a few ways in which that can be done.  Calling 311 is an option.  Perhaps a better one, is to go to the City's "Pothole in Street" website.  Though the site needs a catchier name, it allows for quick and easy reporting of dangerous potholes.  Perhaps a better way still is to whip out your trusty smart phone, snap a photo and report it immediately using the Chicago Works Mobile 311 app.  Available for iPhone and Android users, the app has been around since 2012 and is quite easy to use.  It even tracks the progress of the requested service.  

If the worst happens, and a cyclist is injured due to a dangerous pothole, an attorney's office can send a Freedom of Information Act request to the City of Chicago requesting any complaints that may have been made about the particular hole.  If it turns out that one or more service requests were made then the attorney may take the appropriate action to get the injured bicyclist compensation.

Bicycle Light and Camera Combination May Be Just What Cyclists Need

Lights, camera, Fly6

When drivers believe they are being watched they are more likely to behave themselves.  That is the principle, or at least the hope, behind a new project called Fly6, a rear mounted video camera and tail light for bicycles.

The project is in the development stage and a Kickstarter campaign is underway to help the innovative device to mass production.  Fly6 is the invention of two Austrialian cyclists, Andrew Hagen and Kingsley Fiegert of Perth.  It is a battery operated, rechargeable red flashing tail light that fastens to the rider's seat post just like many other rear facing lights on the market.  The difference is that the light is accompanied by a tiny, high definition video camera that records what is happening to the cyclist's rear.  It records on a two hour loop, meaning that after two hours of run time, the camera starts to record over earlier footage.  In the event of an incident, the camera's microSD card can be removed to download the footage for permanent safekeeping.

Having viewed the Fly6 Kickstarter page, my first impression is that this is a potentially brilliant product.  As a super bright tail light it helps the cyclist be seen by motorists.  Increasing one's visibility is without a doubt the best way to avoid getting hit in the first place.  The Fly6 also notifies rear approaching drivers that they are being watched thanks to the accompaniment of small, bright spinning lights that operate when it is recording.  The camera itself seems to be of high quality, good enough hopefully to record a license plate in the event of an incident.  The size and ease of use of the product seem ordinary enough that use of the Fly6 would not add hassle to the daily bike commute or recreational ride.

Here is a video from the Fly6's Kickstarter page:

Illinois Law Says Drivers Should Stop and Yield to Pedestrians in Crosswalks.

by Jim Freeman

The video below shows a family trying to negotiate a marked crosswalk spanning Armitage Avenue.  They approach the crosswalk as a team.  The woman goes first, trying to get traffic to yield, while the man walks their child behind.  The woman points to the crosswalk and indicates a desire to cross.

What you can't see, just out of frame, is that the driver of the blue car reluctantly comes to a stop just inches away from the lady, immediately rolls his window down and starts yelling while edging forward in a threatening manner.  It all happened really quickly, but the driver's intent was clear. 

The driver of that blue car should be ashamed of himself.  He not only had no right to be mad at the pedestrians, but he had an absolute duty to stop and yield to them.  The Illinois Motor Vehicle code requires drivers to stop for pedestrians in crosswalks.  625 ILCS 5/11-1002 states in relevant part, "...the driver of a vehicle shall stop and yield the right-of-way to a pedestrian crossing the roadway within a crosswalk..."             

If a driver strikes someone in a marked crosswalk they should be expect to be sued for any injuries that arise from that collision.  If their insurance is insufficient to cover the judgement they will probably be held personally accountable for the difference.  The driver could not only be sued, but could be ruined financially and forced into bankruptcy.  The driver will also risk being charged with criminal violations relating to the accident.

If you or anyone you know is ever struck by a car while cross the street in a crosswalk please give us a call.  We enjoy sticking up for vulnerable roadway users, and we love holding negligent or wanton drivers accountable for their actions.      

Large Trucks Should Have Guards To Protect Bicyclists, Pedestrians

A tanker truck outfitted with a guard to protect cyclists.

Right hooks are scary.  They occur when a driver turns right in front of a cyclist causing a crash.  Even scarier - and often deadly - are right hook crashes involving large trucks. The frighting potential exists for the cyclist to end up under the wheels of the truck.  

Our law firm has represented numerous bicyclists who were right hooked by a large truck.  In September, 2013 one of our clients was the victim of such an incident, getting right hooked by a large tanker truck which turned right across the bicycle lane at Milwaukee and Odgen.  The cyclist suffered a fractured and separated shoulder, but her injuries could have been much worse.  She could have been killed.  In October, 2012, one Chicago bicyclist was not so "lucky".  The man in his 50s was killed in Chicago's Noble Square neighborhood when a truck driver illegally turned right in front of him at the intersection of Ashland Avenue and Augusta Boulevard.  (Our firm does not represent the cyclist.)  These tragedies are not unique to Chicago, and now one large city has decided to adopt aggressive measures to protect cyclists from large trucks.

By the end of 2014, London will prohibit large trucks - those over 3.5 tons - from operating in the city without, "side guards to protect cyclists from being dragged under wheels, as well as mirrors to improve a driver's view of cyclists and pedestrians," according to The Guardian.  The measure was proposed in the wake of the deaths of several cyclists killed in London after being swept under the wheels of large trucks.  The measure will be enforced by on street checks and via closed circuit video cameras, The Guardian reports. There will reportedly be large fines for non-compliance.  

There has been some interest in the United States for similar measures.  In 2008, the City of Portland adopted a resolution recommending that large trucks be fitted with side guards.  While not binding policy, at least some trucks operating in the City, including city owned vehicles, were outfitted with the guards.  Also, last year the U.S. National Transportation Safety Board (NTSB), published safety recommendations that included truck side guards.  It called for the development of,

[P]erformance standards for side underride protection systems for single-unit trucks with gross vehicle weight ratings over 10,000 pounds.

Once the performance standards . . . have been developed, require newly manufactured single-unit trucks with gross vehicle weight ratings over 10,000 pounds to be equipped with side underride protection systems meeting the performance standards.

The NTSB also recommended the installation of "visibility enhancement systems to compensate for blind spots" in order to protect bicyclists and pedestrians. The recommendations came on the heels of a NTSB safety study, Crashes Involving Single-Unit Trucks that Resulted in Injuries and Deaths, which found injuries and fatalities to cyclists caused by turning heavy trucks a significant hazard.

Since 1998, large trucks in the United States have been required to have rear impact guards to protect motorists in the event of a rear end collision.  While some have questioned the overall effectiveness of the rear guards, there have been a reported reduction in fatalities since implementation of the requirement.  Now, it is the time to take similar measures to protect bicyclists and pedestrians by requiring large trucks to be outfitted with side guards.

Chicago Police Officer Gets Law Wrong, Lawsuit To Be Filed For Injured Bicyclist

The Chicago police officer at the scene got it wrong.  As a result, a lawsuit will need to be filed on behalf of a bicyclist who was struck by a turning driver at the intersection of West Chicago Avenue and North Green Street.

The cyclist, Camilo Fero, 29, was riding his Fuji Classic east on Chicago at around 9:30 a.m. on September 24, 2013.  He was on his way to work at Better Bag, an environmental business that he owns located at 325 West Huron Street.  It was a clear, dry early fall morning.  When he reached the uncontrolled intersection of Green a motorist, westbound in a 2001 Chrysler Town & Country, made a left turn through a gap that opened up in traffic.  Mr. Ferro, helmeted and riding lawfully to the right of stopped eastbound traffic, was struck by the turning minivan.  An ambulance rushed him from the scene to Northwestern Memorial Hospital with injuries to his right knee, wrist and neck.  He is expected to recover from his injuries.

The incident was a classic "left cross," one of the most common types of crashes between cyclists and drivers in urban settings.  The law as to who owns the right of way between a driver and cyclist approaching from opposite directions in an intersection is quite clear.  Chicago Municipal Ordinance 9-16-020(e) states, 

The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to a bicycle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

Also clear is the cyclist's proper position in the roadway.  Section 9-52-040 (c) states that a, "bicyclist upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as near as practicable and safe to the right-hand side of the roadway."  Also, 9-52-040(d) states, "Any bicyclist upon a roadway is permitted to pass on the right side of a slower-moving or standing vehicle..."

The eastbound cyclist in this matter was riding on the right side of Chicago Avenue, passing slower moving motor vehicles.  Because Mr. Ferro was proceeding straight ahead, it was the duty of the left-turning, westbound driver to yield.  Unfortunately, the police officer that responded to the crash scene did not know the law.  He or she wrote in the narrative section of the Illinois Traffic Crash Report that it was the cyclist that had a duty to yield.  Here is that narrative section ("Veh #1" is the bicycle):

Narrative Section of IL Traffic Crash Report

Mr. Ferro was not ticketed by the police officer, but the effect of the cop getting it wrong is significant.  Police reports like this are not admissible as evidence in litigation.  If this matter proceeds to trial the officer's opinion as to what the law is is not relevant.  However, insurance companies, when considering whether to settle a claim, place heavy emphasis on the contents of police reports.  A few weeks ago the driver's insurer sent our firm a letter stating that it is denying the bicyclist's claim because, "The police report and our insured confirm that your client failed to yield the right of way.  Your client is the proximate cause of this loss."  Therefore, a lawsuit will need to be filed so that Mr. Ferro may receive the compensation he needs to satisfy the costs, harms and losses he incurred from this incident.  

We certainly do not mind filing a lawsuit.  Bluntly, that is what we do on behalf of injured cyclists.  But it should not be necessary in a matter like this.  The issue of fault is - or should be - crystal clear.  Mr. Ferro had the right of way and the driver failed to yield, causing the crash and his injuries.  Unfortunately, because he was unlucky enough to have a Chicago police officer respond to the crash scene that did not know the law, he will need to wait an unnecessarily long amount of time to see just resolution of this matter.  I wish I could say that this sort of thing is rare.  It is not.  We often see police reports written by police officers who do not understand the law as it applies to people on bicycles.  The City of Chicago and municipalities throughout Illinois should education their police forces about the laws that pertain to bicyclists.  When the police do not know the law, justice is delayed, unnecessary lawsuits clog our courts, and the important trust between the police and citizenry is undermined.

Injured Illinois State Cyclists Receive Compensation, Chicago Driver Gets Prison

Tracey Brent, now an inmate at
the Logan Correction Center

They never saw it coming.  Suddenly there was chaos and carnage, broken bicycles and bodies strewn everywhere.  Two summers ago, a 40 year old professor at Illinois State University was leading a group of a dozen students on a bike ride on Chicago's Southwest Side when a driver blasted through the group from behind then fled the scene.

Our law firm was retained to represent two of the injured cyclists, the professor, and one of the female students.  Their personal injury cases have now settled and the driver is behind bars.

On August 4, 2012 at around 11:00 a.m. the professor was leading a group of some dozen riders in the "Bike To Build Community" bike tour.  The ride was a part of a student immersion program for teacher education students at Illinois State where students teach in summer schools, complete service projects at community organizations, take seminars and classes and live with host families in partner neighborhoods.  The bike tour was meant as a means of exploring and getting to know the neighborhood.  The ride began at around 10:30 a.m.  The group passed several points of interest before they continued through a quiet resident area north on Green Street, just north of West 77th Street.  As they approached the end of the block, without warning Tracey Brent came barreling through the group in her Honda Quest mini-van striking many of the cyclists.  She did not stop, but proceeded down the rest of the street before jumping over a curb and up an embankment to some train tracks.  Several of the riders where injured and sent to nearby hospitals.  Two of the riders who were not struck raced after the van and managed to snap a photo of its license plate.

Both of our clients' injuries were serious, though, thankfully, not life altering.  The 40 year old man sustained fractured ribs and injuries to his neck and lower back.  The young student sustained a broken wrist, fractured teeth and numerous cuts and abrasions to her face.  She was knocked unconscious at the scene.  Not surprisingly (at least not to us) was that the driver did not have auto insurance.  Illinois requires all motorists to carry auto insurance coverage.  However, many drivers in Chicago flout the law.  We, therefore, made claims with our clients' own auto insurance carriers under the uninsured motorist provisions of their policies.  These provisions generally apply to protect cyclists, and even pedestrians, who are injured by uninsured drivers, even though they themselves were not operating a motor vehicle.  In Illinois, insurers may not raise the insurance rates of their insureds who utilize the uninsured motorist provisions of their own policies.  We are able to secure for our clients the full amounts of applicable insurance.

Thanks to the quick reactions of two of the riders in the group, the Brent was captured and subsequently charged with numerous violations.  On May 31, 2013 she was sentenced to five years in prison.  Now she is prisoner #R89625 at the Logan Correctional Center in Lincoln, Illinois.  She received credit for time served.  Her projected parole date is December 24, 2014.

Music, Bicycles and the Law

The following piece by Brendan Kevenides originally appeared as part of his Cycling Legalese column on Urban Velo.

People love to listen to music and it comes as no surprise that some people like to do it while riding their bicycle. What is the legality of combining bikes and music? It all depends on how and where you’re listening.

Q:I like listening to tunes while I ride. Is that illegal?

Generally, listening to music while riding a bike is not illegal. However, to know for sure whether doing so is okay or not, two questions must be answered: 1) How are you listening to your music? 2) Where are you?

If you are listening to music via a set of speakers mounted on your bike, then you are okay everywhere. I am not aware of any jurisdiction that bans the use of speakers on bikes for the purpose of listening to music, or anything else for that matter. (Of course, if you’ve got the Justin Bieber cranked to ear splitting levels you may run afoul of local noise ordinances and good sense/taste.) When it comes to bikes and music, what some jurisdictions regulate is the delivery method; in other words, headphones.

A few places have outlawed the use of headphones while biking on public roadways; for example, Florida and Rhode Island. Others have said it is okay so long as you have a headphone inserted in one ear only. California law states, “A person operating a motor vehicle or bicycle may not wear a headset covering, or earplugs, in both ears.” New York also allows headphone use in one ear only. In many states, it is perfectly legal to wear headphones while biking, such as in Oregon and Washington D.C. In 2011, an Oregon legislator, Rep. Michael Schaufler (D-Happy Valley) proposed a bill that would have made it illegal throughout the state to operate a bicycle “while wearing a listening device that is capable of receiving telephonic communication, radio broadcasts or recorded sounds.” Doing so would have resulted in a $90 penalty. Apparently, he told BikePortland.Org that he got the idea for the bill when he “just saw some guy driving down the street on their bike with their headphones on and thought, ‘He could get run over.’” He explained that to him it was “a safety issue.” The bill went nowhere.

Interestingly, in some places the applicability of headphone prohibitions to cyclists is misunderstood. That is the case in my home state, Illinois. Some well intentioned folks claim that it is illegal to bike with headphones here. For example, the City of Chicago states on its website that cyclists should never use earphones because it “is not only dangerous, it’s illegal.” That’s wrong. Neither city ordinance nor state law ban the use of headphones while riding a bike. The only statute that references headphones (it actually uses the term “headset receivers”) states that, “No driver of a motor vehicle on the highways of this State shall wear headset receivers whiledriving.” The emphases are mine. Under Illinois law, a bicycle is not a motor vehicle. Therefore, the prohibition of headphone use does not apply to people on bikes.

Perhaps the more interesting question is not whether it is legal, but whether it is wise to bike on city streets while wearing headphones. There are some important reasons not to do so. There are so many things the urban bicyclist must be attuned to while riding in the city: Trucks, cars, buses, potholes, pedestrians, lights, signs, little dogs, the weather, etc. It may be unwise to diminish one of your senses while navigating a bicycle through this gauntlet of hazards and distractions. By plugging your ears and pouring music into your fully occupied brain while biking you might increase your chances of getting into an accident. In fairness, however, I am not aware of any studies that suggest this is true. Our firm has not seen many cases in which the bicyclist’s use of headphones caused or contributed to cause a crash. On the other hand, if you are involved in a crash, particularly with a motor vehicle, and were found wearing headphones you may harm you chances of successfully seeking compensation for any injuries you receive. Certainly, the driver and his/her attorney will try to suggest that your inability to hear contributed to cause the crash and that compensation should be denied or at least diminished. You and your attorney would be best off not having to deal with the headphone issue should it become necessary to bring a claim or lawsuit.

I am cynical about the motives of those who would make biking with headphones illegal, like Rep. Schaufler in Oregon. I tend to doubt that the safety of the cyclist is the motivating factor behind such proposals. I suspect that the real concern is preventing sound impervious cyclists from slowing motor vehicle traffic. In other words, when I honk, get out of my way. Biking through the city should be pleasant, and for many, listening to music is a great way to ride and feel relaxed. Still, the benefits of headphone use are probably outweighed by the risks.