A Driver's Take on the Cycle Track.

Mark Konkol wrote a piece in the Sun Times titled, "Drivers are the New Smokers," wherein he explored the issue of separated bicycle lanes. In this piece he relates the story of a bicyclist who comes out of the designated bicycle lane and enters the street. The author honks at the bicyclist. The bicyclist flips off the author.

I posted a blog on my firm website that discussed the legal ramifications of separated bike lanes, but Mr. Konkol illustrates the social ramifications. Regardless of the law, if a separate bike lane is provided, drivers expect us to use it and to stay out of the adjacent street. Imagine how indignant Mr. Konkol might have been had a realized that there may be law requiring bicyclists to use the cycle track instead of riding in the traffic lanes of Kinzie.

Most interesting is Mr. Konkol's apparent assertion that drivers are being persecuted because of their choice of conveyance. This is derived from his suggestion that driving is the new smoking in Chicago. Ahhh... How ironic that a driver should be threatened by the installation of a single separated bike lane on lowly Kinzie Avenue. It's not like the took a lane off the Kennedy... They just reduced a small side street to one through lane for mostly experimental purposes, and becuase of that a driver feels like his right to the road is threatened? A driver feels like his rights to roadways is being diminished becuase of the loss of a few feet of pavement along a dingy side street.

Fear not avid drivers. There are roads aplenty to accommodate your cars.

Taxi Complaints.

Last week I observed the above Taxi blocking the cycle track. This cabbie had pulled between the pylons to the curb, cutting off a bicyclist in the process. When the bicyclist tried to explain to the cabbie that he should park in the parking lane, the cabbie ignored the bicyclist and remained blocking the cycle track. This picture of the offending taxi was taken after I came upon the scene and had a conversation with the cyclist, Mike. At the point I snapped this photo, the cabbie had been blocking the lane for a full five minutes or so after Mike had explained the intended workings of the cycle track and the adjacent parking lane. Mike even went so far as to point out the posted signage. No luck though, the cabbie just sat, intentionally blocking the lane.

The cabbie may argue that he is required to pull to the curb to pick up or drop off passengers, although this cabbie did not make that argument. He appeared to be more intent on blocking the cycle track just to spite Mike.

I explained to Mike that complaints against taxis may be lodged with the Department of Consumer Affairs by calling 311 or filing a complaint on-line. This is a good way to have your complaints heard as well as my experience is that the Department of Consumer Affairs typically follows up on complaints against taxis. The DCA has the power to discipline the cabbie and/or suspend the cabbie's right to work as a taxi driver in the City.

From the City's web site:

Complaints are investigated about the condition or safety of a cab, a driver refusing to pick up a passenger or take them to their destination, reckless driving, or an overcharge on the fare or discourtesy to passengers or fellow motorists.

It is vital to have a complainant's name and contact information on reports against drivers, as disciplinary action may be impossible without this vital information.

The Department of Business Affairs & Consumer Protection reviews all cab complaints.

Chicago Cycle Track; A Separate Lane for Bicycles

Chicago has announced it is in the process of installing the first "cycle track" or separate bicycle lane. The Cycle track is currently being installed on Kinzie between Wells Street and Milwaukee Avenue. Bicycling advocates are largely excited about this experiment becuase it may signal a new direction for future bicycle infrastructure completely separate from driving lanes.

I like the design of the cycle track in theory. Mostly I like that it provides bicycles with space to operate away from the dangers posed by moving traffic. I also like that the cycle track appears to have been designed to leave space to protect bicycles from doorings. My understanding is that the picture above depicts a car not in a driving lane, but parked in a parking spot. The cycle track is intended to be separated from the moving traffic lanes by a line of parked cars.

I'll watch this experiment with great interest.

Photo courtesy of M. Burton.

Are Bicycle Messengers Employees or Independent Contractors?

This is a question that comes up from time to time in my practice. If a client ever comes in with a case that occurred while they were working as a messenger we will often initiate a Worker’s Compensation claim regardless of whether or not they are classified as employees or independent contractors. As it turns out, the classification deemed by the employer is not dispositive by a long shot.

Messengers are often under the mistaken impression that they are “independent contractors” because their employer says they are an independent contract. Often, the employer has the messenger sign documents indicating their knowledge of their status as an “independent contractor.” When it comes to the question of who is an employee, the Illinois Industrial Commission has the last word.

Let us consider the example of the case my firm handled, Rangel v. Standard Courier, 10 IWCC 0023. In that case a bicycle messenger when he was hit by a car on the way to a drop. Mr. Rangel made a claim under the Illinois Workers’ Compensation Act, which was fought tooth and nail by Standard Courier. Standard Courier maintained all along that Mr. Rangel was an “independent contractor,” not an employee.

Mr. Rangel was hired by Standard Courier as a bicycle messenger. When he showed up for his first day of work, Mr. Rangel filled out a “NICA Independent Contractor Profile Form.” At the bottom of that form, just above Mr. Rangel’s signature, appeared the language, “I understand that I am completing this information in order to contract me services as a self-employed Independent Contractor and not as an employee of any company.”

Mr. Rangel also executed a document labeled, “Independent Contractor Agreement” a document that suggested that Mr. Rangel wished to specify his/her relationship to Standard Courier as an Independent Contractor, and not as an employee. Language from that document reads in relevant part, “In pursuing the work described in this Contract, the Contractor understands and agrees that he/she shall be and remain an Independent Contractor in fact and law.”

Further documents executed by Mr. Rangel indicated that Standard Courier was not to exercise direct control over “Contractor,” nor would the control the method or means by which the contractor performed his/her services. Further, Contractor was free to accept or reject any delivery orders. Mr. Rangel was paid through a trust operated by NICA. Mr. Rangel was responsible for paying his own income taxes. Mr. Rangel was required to maintain “bicycle insurance.”

Finally, it was expressly agreed in the documents signed by Mr. Rangel that he was an independent contractor, and he would not be covered by Standard Courier’s Workers’ Compensation insurance. Mr. Rangel agreed, by signing the documents, not to hold himself out as Standard Courier’s employee and to only represent himself as an independent contractor. The documents further indicated that Mr. Rangel would not be deemed or construed to be an employee of Standard Courier for purposes of Illinois Law.

Despite all those documents indicating to the contrary, Mr. Rangel was deemed by the Illinois Industrial Commission to be an employee, and if the Illinois Industrial Commission says someone is an employee that person is an employee.

The Industrial Commission based its finding on an analysis performed under the Illinois Supreme Court case Roberson v. Industrial Commission. Under Roberson, the determination of “employee” or “independent contractor” status is a fact specific inquiry taking into account the, “totality of the circumstances.” Roberson v. Industrial Commission, 225 Ill.2d 159, at 174 (2007). Factors considered by the Roberson Court are:

• Whether the employer may control the manner in which the person performs the work,
• Whether the employer dictates the person’s schedule,
• Whether the employer pays the person hourly,
• Whether the employer withholds income and social security taxes,
• Whether the employer may discharge the person at will,
• Whether the employer supplies the person with materials and equipment.

In Mr. Rangel’s case, the Industrial Commission considered these factors. They found that Standard Courier exerted control over Mr. Rangel’s work by prohibiting him from subcontracting work out. Standard Courier also exercised control over Mr. Rangel’s schedule by requiring Mr. Rangel to stick within an agreed schedule or be discharged. Standard Courier required Rangel to lease a radio, an essential piece of equipment as a messenger. Standard Courier also issued Mr. Rangel a badge with Standard Courier’s logo.

When Mr. Rangel came into our office we immediately recognized the potential for a Workers’ Compensation claim, and accordingly Robert Smoler was brought on board to help with the Workers’ Compensation aspects of Mr. Rangel’s claim. He is an invaluable member of the team who brings to the table years of experience dealing with the Industrial Commission.

In Mr. Rangel’s case we were successful in securing an award for Mr. Rangel. In so doing, we set a template by which future Worker’s Compensation Claims may be pursued against employers who are trying to avoid paying payroll taxes and Workers’ Compensation insurance on their employees. In doing so, employers enrich themselves while putting their employees at great risk.

Maybe Doorings Are Accidents...

The Chicago Tribune reports today that IDOT will now keep track of doorings. Previously, IDOT had refused to consider doorings accidents, therefore, no statistics exist on doorings. This is a positive change, which may affect the availability of federal funds for driver education and other efforts in attempt to reduce doorings.

I have long estimated that about one third of all bicycle collisions in Chicago are doorings. It appears that in the future we will have an opportunity to see if my estimates hold true.

Pedestrians and Signals...

Last night I received a call from a former client who wanted to know if cars are required to yield to pedestrians in a crosswalk against a don't walk signal. My client had heard interpretations of the new "stop and yield" law that suggest that drivers are required to stop and yield to pedestrians in any marked crosswalk despite the signal indication. The answer is: It's not that simple.

Illinois law was amended recently to require drivers to not only yield, but also to stop for pedestrians in crosswalks.

625 ILCS 5/11‑1002 (a) When traffic control signals are not in place or not in operation the driver of a vehicle shall stop and yield the right‑of‑way to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.

Even if (hypothetically speaking) cars are required to yield to pedestrians regardless of the traffic signal, Illinois law specifically prohibits pedestrians from crossing the street against a don't walk signal.

625 ILCS 5/11‑1001 (a) A pedestrian shall obey the instructions of any official traffic control device specifically applicable to him, unless otherwise directed by a police officer.

Further, Illinois law prohibits pedestrians from walking into traffic.

625 ILCS 5/11‑1002 (b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a moving vehicle which is so close as to constitute an immediate hazard.

If you are hit by a car while crossing against a don't walk sign, you can expect the driver to raise the issue of your statutory violation as a defense. It is my experience that such defenses are effective absent evidence that the driver saw the pedestrian and disregarded him/her. So while it might not be right for a driver to disregard a pedestrian simply becuase the pedestrian has a "don't walk" signal, it also isn't right for a pedestrian to enter the street against a don't walk signal.

People often pose these academic questions about the application of civil law, but my response is often one of practicality. "Assume you're right... is it worth it if you're dead or injured?" You'll be in the legal right if you're hit while crossing in a marked crosswalk, notwithstanding any other traffic violations, and I'll be in a perfect position to bring a case or claim against the driver for your injuries. If such an unfortunate circumstance ever comes to pass a good lawyer can take care of the financial aspects of things to the extent of the law, but no lawyer can make you whole again. Nothing is worth a permanent injury or loss of life. Every person I've ever known with a permanent disability would rather be whole than "have a case."

Play it smart at intersections and crosswalks alike. My experience is that drivers almost always disregard the "stop and yield" requirement at crosswalks. Better to be safe than dead, so don't walk out into traffic just becuase of a legal principle, always keep your wits about you and watch for approaching traffic when crossing the street and obey traffic signals.

Strategies to Avoid Doorings.

Doorings have made a bit of press lately with the revelation that IDOT does not track or count doorings based on their assertion that there is no moving vehicle involved. ATA is trying hard to change that, but in the meantime cyclists should be aware that doorings are a real hazard.

I suggest several easy strategies to avoid doorings:

1. Stay out of the door zone. See the picture above from Boston Biker Blog. It illustrates where the door zone is in relation to a bike lane. Keep in mind that bike lanes are basically striped directly in the door zone in Chicago, so ride toward the outside of the bike lane.
2. Look in side view mirrors for people. If you see someone in the car you know that door may be opened in your path, so act accordingly.
3. Put out your hand to catch doors. If I ride in the door zone, or close to a parked car door, I instinctively put out my hand as if to catch an opening door. Twice I have avoided being doored in this way.
4. Bob Matter also suggests the use of a "Take a Look" mirror. His theory is this: Most people ride in the door zone becuase they are worried about being hit from behind. If you use a mirror it makes one a little more comfortable to take a lane if they have a view of the traffic approaching from behind.