Thursday, January 3, 2013

Recovery after A Hit-and-Run; You May Not be Out of Luck.

Bicyclists and pedestrians are especially vulnerable to hit-and-run collisions. When a bicyclist or pedestrian is hit by a car they don’t tend to be able to chase down a fleeing driver.  If a driver gets away the cyclist/pedestrian victim may assume that they will be stuck with any medical bills or other damages that result from the accident.  Cyclists should be aware there are things that can be done to compensate a hit-and-run victim.
I believe that urban cyclists are more at risk of having a driver flee the scene of a collision. 

We recently obtained data from the Illinois Department of Transportation through a freedom of information request regarding reported accidents in Illinois.  That data revealed that in 2010 about 12.3% of reported accidents statewide were classified as hit-and-runs, but 31.4% of accidents in Chicago were reported as hit-and-runs.  Hit-and-run accidents are relatively uncommon, but they do happen.   

Often times a hit-and-run driver is identified.  When the driver is identified they can be held personally responsible for their victim’s losses.  The victim can bring a claim against the driver for their injuries and damages.  In some states flight from the scene of the accident is considered evidence of fault, and in some states hit and run drivers may be responsible for not only the value of the injuries caused but also punitive damages.
If the driver successfully leaves the scene without being identified, the victim of a hit-and-run may be stuck with medical bills.  Sometimes there are still places one can look for compensation. 

In many states the bicyclist may be able to make a claim under other insurance coverage that might be activated by the hit-and-run collision.  If the bicyclist owns a car, is a live-in relative of a car owner, or a full time student living away from home (and their parents own a car), there may be an automobile policy providing insurance coverage for injuries sustained as the result of the hit-and-run.  If the bicyclist is covered under a non-owner or operator’s auto policy, that coverage may provide insurance in the event of a hit-and-run.  Some states require that the actual driver of the hit-and-run vehicle be identified, Illinois does not.  If you have questions about whether or not your insurance would cover you in the event of a hit-and-run it’s a good idea to read your policy, give us a call.

Anyone unfortunate enough to be involved in a hit-and-run should treat the collision like any other; call the police, get medical attention, write down witness contact information, preserve evidence through pictures or notes, and try to keep calm.  As with all collisions, the best way to avoid them is to be seen.  Wear contrasting clothing, ride predictably, and always use lights and reflectors.

Wednesday, October 31, 2012

Rear Ended; Driver Walks Because of Lack of Headlight

An Australian bicyclist was struck from behind and severely injured because the driver didn't see him. The cyclist had a red rear blinking light attached to his helmet, but lacked a front headlight as required by law. According to The Courier, the driver claimed she didn't see the cyclist, and that he, "came out of nowhere." Cyclist appearing by magic seems to be a theme among negligent drivers.

One would think that the cyclist's headlight would not be relevant with respect to cars approaching from behind, but the judge in this case ruled that because a headlight is required by law and the cyclist was in violation the driver was not guilty of careless driving.

This illustrates why it is so important that cyclists comply with equipment regulations- including lights, reflectors, helmets, brakes and anything else required by law. If you don't have equipment as required by law you may find a driver judge or jury of motorists to have little sympathy for you.

Friday, October 26, 2012

Wrongful Death Settlement

We recently settled a case in which a bicyclist was struck and killed by a truck on a rural road.  The truck was in the process of overtaking the cyclist, just as the cyclist started making a turn into a driveway entrance.

The driver told police that the bicyclist had "swerved suddenly" into the path of the truck, and she was unable to avoid hitting the bicyclist.  The local police, who were apparently friends of the driver's family, did a cursory investigation and wrote the report to appear that the collision was entirely the bicyclist's fault for making a sudden unsigned turn.  The driver wasn't charged with any crime or even so much as issued a citation in connection with the collision.  The site of the accident had indeed occurred exactly at the drive entrance, so it was easy for police to suggest the bicyclist made a sudden un-signaled turn.

Our office was retained shortly after the collision, which is an ideal situation.  We worked quickly to perform an intensive investigation.  We sent an investigator out to do independent interviews of all potential witnesses.  We also had an expert examine the scene, the truck and the subject bicycle.  He also took detailed measurements of the scene of the accident, and he examined and carefully documented the damage to the truck and bicycle.

Through our investigation we were able to determine that the bicyclist had not made a sudden turn, but rather he was in the process of a gradual turn, and that the driver had failed to leave the required safe distance of not less than three feet when overtaking the cyclist.  The driver had not struck the bicyclist broadside as would be expected if the bicyclist had made a sudden turn.  The bicyclist had almost been sideswiped by the car with the initial point of contact to the truck being on the passenger side toward the front rather than the front of the car.  This suggested the bicyclist had been facing more or less in the direction of travel at the time of the actual impact.  Further, the location of damage and trajectory of the bicyclist after the impact suggested that the truck had been traveling at a high rate of speed, possibly in excess of the posted speed limit, and had turned suddenly just before the impact.  Taking all these factors into consideration it actually appeared that the bicyclist had been in the process of making a gradual turn into the drive and the driver had simply not seen the bicyclist until it was too late.

Our independent expert opined that the driver may have been distracted or inattentive when she came upon the bicyclist and was unable to avoid hitting the bicyclist by the time she realized an impact was imminent.  The location of the truck and bicyclist in the roadway before the accident and the location of initial impact to the truck were more consistent with a situation in which the bicyclist was struck in the middle of the driving lane from behind by the truck when it was in an attempted high speed evasive turn on the right side of the road, not in the passing lane.

Thankfully, our client retained us quickly, so we were able to secure crucial evidence that otherwise would have been lost over time.  When we came on board the defendant's insurance company argued that their insured was not at fault for the accident at all.  We had to convince them that we were equipped to prove their insured acted negligently, and that we were willing to do whatever was necessary to secure a recovery for our client.  The case eventually settled for the full amount of the defendant's insurance policy of a quarter million dollars.  As with all settlements or verdicts of this nature, a percentage of our fees were donated to non-profits who advocate on behalf of bicycles such as the League of Illinois Bicyclists and Active Transportation Alliance.

Wednesday, July 18, 2012

Electric Bicycles, Motorized Bicycles and DUI Provisions of the Illinois Motor Vehicle Code

Last year I was contacted by an individual who had been charged with DUI in connection with his operation of an electric bicycle while under the influence of alcohol.  He thought the DUI might not be valid because he was riding a "bicycle" at the time of the violation.

In People V. Schaefer, the Illinois Appellate Court held that the DUI provisions of the Illinois motor vehicle code do not apply to human powered vehicles such as bicycles.  For a detailed discussion on this topic see the blog on my firm web page here.  While the Court recognized that the hazard posed by an intoxicated cyclist to be somewhat less imposing than that of an intoxicated motorist, they ultimately based their decision on the definition of a "vehicle."  The applicable provisions of the Illinois motor vehicle code indicate that a vehicle is, "every device, in, upon or by which any person or property is or may be transported or drawn upon a highway... except devices moved by human power.."

Since a bicycle is moved solely by human power bicyclists are not subject to the DUI provisions of the Illinois Motor Vehicle Code.  Having said that, they can be charged with public intoxication or open container violations.

An electric bicycle, on the other hand, is propelled in part or whole by electricity, and therefore it does meet the definition of a "vehicle" under the Illinois Motor Vehicle Code.  Operators of motorized bicycles and electric bicycles should be careful to stay within the legal limits in Illinois or risk being charged and convicted of a DUI.

Monday, July 16, 2012

Motorized and Electric Bicycles.

On Saturday I was witness to a near collision caused by a bicycle equipped with an engine.  To be clear, this was not a motorcycle, rather a standard cruiser bicycle with a small engine mounted to the frame.  The motorized bicyclist passed a standard pedal bicyclist in a bicycle lane between a car that was in the process of overtaking the pedal bicyclist in the left through lane.  The parties involved were able to avert a collision, but everyone had to take evasive maneuvers.  From my point of view the motorized bicyclist bore the majority of fault for any accident that may have ensued for improperly using a bicycle lane.
Bicycles that use any sort of propulsion other than human power are no longer considered bicycles under the Chicago Municipal Code.  Once a bicycle is equipped with any means of assisted power it becomes a "vehicle" under the Chicago Municipal Code, and therefore, that bicycle is no longer entitled to use bicycle infrastructure such as bicycle lanes or bicycle parking racks on sidewalks.  Vehicles are prohibited from using bike lanes and prohibited from parking on sidewalks within the City limits.

Some motorized or electric bicycle users may argue that Illinois law allows them to use bicycle infrastructure, but such arguments are not valid in Chicago where local municipal law is different.  Although there are certain provisions of Illinois law that apply to mopeds or motorized bicycles with less than 50cc of displacement, Chicago makes no such distinction. According to Chicago Municipal Code there are "vehicles" (not human power) and "bicycles" (solely human power). Chicago Municipal Code specifically prohibits any "vehicles" from using designated bike lanes. Chicago Municipal Code further defines a vehicle as, "every device in, upon or by which any person or property is or may be transported or drawn upon a street or highway, except motorized wheelchairs, devices moved solely by human power, devices used exclusively upon stationary rails or tracks and snowmobiles, as defined in the Snowmobile Registration and Safety Act of Illinois." Clearly, mopeds,  motorcycles, motorized bicycles and electric bicycles fall under the definition of a "vehicle," and are therefore prohibited from using bicycle lanes within the City of Chicago under Chicago Municipal Code.  A CPD officer can simply issue the ticket for the violation of the applicable provisions of the Chicago Municipal Code and any fine or judgement hinging on that violation will probably be found valid. 
See relevant provision of the Chicago Municipal Code:

9-40-060 Driving, standing or parking on bicycle paths or lanes prohibited [as of March 2008]
The driver of a vehicle shall not drive, unless entering or exiting a legal parking space, or stand, or park the vehicle upon any on street path or lane designated by official signs or markings for the use of bicycles, or otherwise drive or place the vehicle in such a manner as to impede bicycle traffic on such path or lane. The driver of a vehicle shall not stand or park the vehicle upon any lane designated by pavement markings for the shared use of motor vehicles and bicycles, or place the vehicle in such a manner as to impede bicycle traffic on such lane. In addition to the fine provided in Section 9-4-025 of this Code, any vehicle parked in violation of this section shall be subject to an immediate tow and removal to a city vehicle pound or authorized garage.

Amended Coun. J. 3-12-08, p. 22783

9-4-025 Bicycle safety violation–Penalty [as of March 2008]
(a) Any person who violates subsection (e) or (f) of section 9-16-020, subsection (c) of section 9-36-010, or section 9-40-060, of this Code, shall be subject to (i) a penalty of $150.00 or, (ii) if such violation causes a collision between a motor vehicle and a bicycle, a penalty of $500.00, for each offense.

(b) Any person who violates sections 9-40-160 or 9-80-035 of this Code, when such violation interferes with the movement of a bicycle, shall be subject to (i) a penalty of $150.00 or, (ii) if such violation causes a collision between a motor vehicle and a bicycle, a penalty of $500.00,
for each offense.

Added Coun. J. 3-12-08, p. 22786

9-4-010 Definitions.
"Vehicle" means every device in, upon or by which any person or property is or may be transported or drawn upon a street or highway, except motorized wheelchairs, devices moved solely by human power, devices used exclusively upon stationary rails or tracks and snowmobiles, as defined in the Snowmobile Registration and Safety Act of Illinois.
"Bicycle" means every device propelled solely by human power upon which any person may ride, having two tandem wheels and including any device generally recognized as a bicycle though equipped with two front or two rear wheels.

See relevant portions of the Illinois Vehicle Code:

Sec. 11-1505. Position of bicycles and motorized pedal cycles on roadways - Riding on roadways and bicycle paths.
(a) Any person operating a bicycle or motorized pedal cycle 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 close as practicable and safe to the right-hand curb or edge of the roadway except under the following situations:
1. When overtaking and passing another bicycle, motorized pedal cycle or vehicle proceeding in the same direction; or
2. When preparing for a left turn at an intersection or into a private road or driveway; or
3. When reasonably necessary to avoid conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, motorized pedal cycles, pedestrians, animals, surface hazards, or substandard width lanes that make it unsafe to continue along the right-hand curb or edge. For purposes of this subsection, a "substandard width lane" means a lane that is too narrow for a bicycle or motorized pedal cycle and a vehicle to travel safely side by side within the lane.
4. When approaching a place where a right turn is authorized.
(b) Any person operating a bicycle or motorized pedal cycle upon a one-way highway with two or more marked traffic lanes may ride as near the left-hand curb or edge of such roadway as practicable.
(Source: P.A. 95-231, eff. 1-1-08.)

Thursday, July 12, 2012

Lawyer Jim Freeman Breaks County Record With 2.55 Million Dollar Hit-And-Run Settlement

The Law Offices of James M. Freeman P.C. settled a downstate Illinois case for a bicyclist who was the victim of a hit-and-run driver.  The bicyclist was struck from behind when the driver of a Ford F-150 truck apparently dropped a cigarette into his floorboards and reached down to pick it up.  By the time he looked up it was too late to avoid hitting the cyclist.  The driver struck the cyclist from behind and fled the scene.

The case settled for 2.55 million.  This settlement was the all-time largest reported verdict or settlement in the pending county.

Tuesday, July 10, 2012

CDOT Claims to Try to Reduce Hit-and-Run Accidents in Chicago.

CDOT (Chicago Department of Transportation) commissioner Gabe Klein was interviewed by Grid Chicago's John Greenfield on the topic of hit-and-runs.  On July 3, Klein attended a press conference highlighting efforts to reduce pedestrian/auto collisions, including the installation of "Stop for Pedestrians" signage.  Klein indicated that the signs, "...remind drivers with a visual cue of the state law that requires them to stop if pedestrians are in the crosswalk."

In 2010 Illinois amended existing law to require cars to stop for pedestrians in crosswalks.  Before that time drivers were only required to yield to pedestrians in crosswalks.  Since the passage of the new law I haven't noticed any significant change in driver conduct at crosswalks when pedestrians are present.

Grid Chicago recently revealed that pedestrians are at particular risk of being the victims of hit-and-run collisions.  Almost one out of every three pedestrians hit by a car in Chicago can expect the car to flee the scene of the collision. 

In order to combat the problem Klein outlined certain efforts CDOT is taking in an effort to combat the high percentage of hit-and-run accidents.  He mentioned two specific efforts.  First, CDOT is working with CPD (Chicago Police Department) in an unspecified manner.  Second, CDOT is trying to implement strategies to slow speeding drivers down in general.

To be clear, I have seen numerous instances in which a hit-and-run driver can be later identified, and CPD fails to pursue the offending party.  One of my first hit-and-run cases involved a driver who fled the scene of a collision, leaving a 25 year old girl lying in the street with a broken arm.  As is often the case, witnesses provided the hit-and-run driver's plates, and my client got a good look at the driver.  The license plate number provided to police matched the description of the car.  CPD took a report of the accident, but took no action to apprehend the driver.  My office conducted our own investigation and located the hit-and-run driver.  Months later, just after he received our letter indicating, "You are not going to get away with this," the driver marched into the local police station with his lawyer and turned himself in, only to be issued a ticket for "failure to give information and render aid," a misdemeanor, rather than a felony hit-and-run for leaving the scene of an accident involving a personal injury.

A couple years ago we handled a case in which a driver ran down a bicyclists and fled, only to be caught in traffic a block down the street.  As chance would have it, a private detective witnessed the hit-and-run and he chased down the driver, now stuck in traffic a block down the street.  The driver then tried to run down the private detective, striking him before finally successfully fleeing the scene of the accident.  Witnesses would have been able to identify the driver, and they got the plates of the fleeing car.  CPD took a report, but didn't pursue the driver.  He was never charged with any criminal action.

Just last month I became aware of an instance where a hit and run offender was caught on videotape fleeing the scene of an accident, and the police refused to take any action, despite the fact that the offender's license plate was visible in the video.

In recent years I have come to the conclusion that law enforcement in Cook County either doesn't have the resources to deal with hit-and-run offenders, or they simply lack the interest.  Either way I invite Commissioner Klein's efforts to motivate all levels of law enforcement to take this problem more seriously.  I sincerely hope it makes a difference.