PhillipsLaw Firm | Bicycle Law

TAKE ACTION NOW TO COMBAT ANTI-BIKE SENTIMENT IN THE BUSH ADMINISTRATION!

2007-08-16T20:45:00.000-05:00

This just in from the League of American Bicyclists. I am surprised by the comments of Mary Peters. I LIKE her Motorcycle behavior, but certainly not her BIKE behavior. She has to remember she's not "Motor Vehicle Secretary" but "Transportation Secretary." The roads are not solely for motorized traffic, they are PUBLIC ways created by the government of our people for the purpose of allowing us people to move freely about the cabin!

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League Responds to U.S. Transportation Secretary's comments on PBS

Transportation Secretary Mary Peters talks about infrastructure problems and travel initiatives.	More Info
Peters cited "bicycle paths" as a prime example of the waste

Last night on the PBS NewsHour with Jim Leher, DOT Secretary Mary Peters was interviewed by Gwen Ifill. Peters, when asked about a possible gas tax increase, repeated President Bush's response - No, there can be no tax increase because Congress is wasting the money they already get. Peters cited "bicycle paths" as a prime example of the waste because bicycles are not a transportation use of the gas tax money. It is disappointing that the administration is attacking Jim Oberstar for his efforts to get the Minneapolis bridge repaired along with raising all the funding for transportation maintenance, by using Oberstar's support for bicycles as a weapon. The League of American Bicyclists feels strongly that this should not go without a response and we have sent a letter to Secretary Peters voicing our view. Click here to view our response. For those of you who feel strongly about bicycling issues, we would also urge you to contact the Secretary to share your personal viewpoints. To view a copy of the program click here

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BIKE LAW 101 - Article Says Injured Cyclists More Likely To Hire Lawyers!

2007-08-15T10:40:00.000-05:00

A recent AP article published in the Santa Fe NewMexican, http://www.freenewmexican.com/news/66486.html, is entitled " More cyclists hit by cars turning to lawyers." The article's dateline is Boise, Idaho and quotes a number of west coast lawyers who have noticed an uptick in their "bike cases." There is probably a very good [statistical] reason for this.
The Insurance Institute for Highway Safety is a group funded by virtually every auto insurer in the country. The IIHS publishes crash test data and crash statistics every year. The IIHS "Fatality Facts" gives an in depth look at highway deaths, including a special page for Bicyclist deaths. The current version is found at http://www.iihs.org/research/fatality_facts/bicycles.html.

If you compare the statistics for bicycle deaths from 1975 to those of today a few things jump out at you. First, 1003 cyclists were killed on the nation's roadways in 1975, and "only" 782 died in 2005. However, the demographics of those killed have been completely flipped over.

In 1975 67%, or 2 out of every 3, of the 1003 deaths involved a cyclist under the age of 16 - kids really. In 2005, however, 81% of all cyclists killed on the roads were OVER the age of 16. In fact, the vast majority of cyclists killed were over the age of 30!

Does this jive with your perception of reality? I'm 50 [yea yea, I know...] and "... back when I was a kid..." in addition to walking FIFTEEN MILES uphill, both ways, through the snow to get to school, we used to hop on our bikes in the summertime and leave the house after breakfast - we might make it back for lunch, but more likely, we'd get home by dinner time. We rode everywhere and rode on the streets every summer day. Today, that is virtually unheard of in most metropolitan areas.

Today, more and more men and women in their 30's and 40' and 50's getting serious about cycling - as a way to stay fit [that doesn't stress the knees], as a means of transportation, as a way to save gas, make an environmental statement, relive their childhood or just have FUN!! Sales of high end bikes are doing very well. Men and women with careers and disposable income are buying nice bikes and riding on the roads.

The more hours such men and women spend in traffic, the higher the likelihood that they'll get whacked by an errant motorist! When such people are injured, their claims are considerably more valuable due to the potential loss of income and the like. Such men and women are generally motivated, savvy and not afraid to retain competent legal counsel to pursue claims when they are hurt, or can't work, due to the negligence of motorist!

The story in the Santa Fe newspaper makes perfect sense when viewed with this backdrop~

Good Luck and Good Riding!~
Steve Magas, The Bike Lawyer - BikeLawyer@aol.com

BIKE LAW 101 - The BLS for the Touring Cyclist - Part One - Insurance

2007-08-14T16:44:00.000-05:00

BIKE LAW 101

THE B.L.S [1] FOR THE TOURING CYCLIST - Part One - INSURANCE

By Steven M. Magas, The Bike Lawyer[2]

Can’t you just picture it – maps laid out, clothes folded ready to be loaded into waiting panniers, bike all tuned up, the smell of Teflon floating about the room. The last thing on the touring cyclist’s mind as he/she goes through the Pre-Trip Checklist is the BLS. Unfortunately, failure to consider the BLS can end up costing the touring cyclist time, money and the safety and peace of mind of his family! The BLS includes: insurance issues, estate planning and traffic/bicycling laws. We’ll take a look at all three, starting with the always exciting topic of INSURANCE today!

INSURANCE ISSUES for the TOURING CYCLIST

Insurance? You don’t need to worry about no stinkin’ insurance, right? You’re driving a BIKE not a car … what can POSSIBLY happen? [For this part of the article, let’s assume you are staying inside the United States – things REALLY get crazy in the insurance world when you cross sovereign borders!]

Health Insurance

First, and foremost, before you leave the house make sure you are carrying all of your health insurance information. Keep it close at hand - better yet, pack your insurance card, or a copy, in a small [2”x3”] baggie with your ID, emergency contact information and list of medical allergies stored visibly on your person – or in your helmet! If you are hurt on the road, unable to communicate and need emergency care or serious medical intervention you do NOT want healthcare professionals wondering who you are, who to contact and whether or not you’ve got health insurance! “Road ID” is a company that makes an excellent wristband product holding a plate with your emergency information or whatever you tell them to type on the plate!

WARNING: While I have not seen this in my “bicycle law” practice, I have learned from my “motorcycle law” practice that some health insurers are experimenting with limiting the benefits they provide if an insured is injured while riding a motorcycle or engaging in certain other “hazardous sports.” As you might expect, motorcycle groups, such as the American Motorcyclist Association, are up in arms and preparing to do battle. However, under policies out there right now a motorcyclist can hit by a DRUNK driver and have NO health insurance coverage! If insurers find this effective, you can BET they will apply the concept to cycling very soon! A bill is currently pending in Congress to stop this practice.

Homeowner’s Insurance

Keeping your homeowner’s insurance with you is also important. Many people do not realize that their homeowner’s insurance will provide coverage if they negligently run over someone or something! If you are going on an extended trip, take your agent’s phone number and your policy number. If someone claims YOU did something wrong, causing them loss, damage or injury, you will need to contact you homeowner’s insurance carrier right away!

Auto Insurance – Medical Payments Coverage

Why would you need to take information about your automobile insurance policy on a 3 week bike ride? If you are injured in a crash with a motor vehicle you may find some financial assistance buried within your automobile insurance policy!

Most auto insurance policies provide, or offer, “medical payments” coverage. This coverage pays YOUR medical bills if you are in a crash with another car. Historically, if you were hit by a car while riding your bike your “medical payments” coverage could be used to pay some of your medical bills even though the coverage is found in your automobile policy.

WARNING: Recently, I came across the first automobile insurance policy I have seen, from Nationwide Insurance, which LIMITS “medical payments” coverage and EXCLUDES paying medical bills if you are hit by a car while riding your bike! Read your policy closely before you leave. The language may be difficult to decipher, or ambiguous. You may want to ask your agent if you are covered in such a scenario. If the agent says “Yes” then IMMEDIATELY fax a letter to the agent [and keep a copy] restating your question and his answer and thanking him for his advice. State in your letter that you are relying on this important advice because you often ride your bicycle in situations where you are in close proximity to motor vehicles. Even if the agent is wrong in his/her advice, your letter may serve to extend coverage anyway, depending on the case law of your state, as an agent’s statements of coverage may bind the carrier.

Auto Insurance – Uninsured/Underinsured Motorist Coverage

One all too common scenario many road riders regularly face is the cowardly motorist who zooms by and runs you off the road, throws something at you or otherwise causes a crash in which the cyclist is injured. These “phantom motorist” cases are tough, but the law of many states provides for a recovery under the “uninsured/underinsured motorist” [“UM/UIM”] provisions of your auto insurance policy.

I advise my clients to buy as much “UM/UIM” coverage as they can afford because it is coverage that pays YOU when you need it the most! The “uninsured” part of this is obvious. If you are struck by motorist who simply has no insurance, your “UM” coverage should pay your injury claim just as if it was the motorist’s coverage.

The “underinsured” may not be so obvious. Let’s say the motorist who runs you over actually has pretty good coverage - $100,000.00 policy limits. However, because of the severity of your injuries, wage loss, medical bills, pain, permanent injuries and the like, your claim is worth a lot more than that – say, $500,000.00. The motorist, despite his excellent coverage, is considered “underinsured” and your policy’s “UIM” coverage may be used to pay more towards your claim depending on your policy limits. Again, the law varies dramatically from state to state on this one!

Are you carrying an Umbrella?

Do you carry any type of excess or umbrella insurance? These types of policies are designed to go over the top of all other policies and only come into play in extraordinary occurrences in which all other available insurance is used up and you still have losses. An umbrella policy is usually written with large policy limits - $500,000.00 or more. You are required to carry certain minimum policy limits for underlying coverage. I advise ALL bike riding clients to consider an umbrella policy. They are typically very inexpensive and, in that once in a lifetime situation, can save your financial life! Consult your insurance professional for details.

Real Life Insurance Example

So here’s a real-life example of insurance coverage in action. My client, a physician who rides all the time, suffered a dangerous fractured neck when a motorist backed out of a driveway directly in front of him as he rode down a hill. He needed surgery to fuse his neck. The motorist, unfortunately, had state minimum auto coverage - $12,500.00. The client’s medical bills were in excess of $80,000.00. His wage loss is $50,000.00 and still growing.

Fortunately, the cyclist purchased excellent auto coverage which had $300,000.00 “underinsured motorist” coverage and $10,000.00 in “medical payments” coverage. He used the medical payments coverage to pay his “co-pay” for the surgery and other treatment. In addition, he maintained an excellent disability insurance policy through his practice that kept him afloat financially while he was off work completely for more than two months. Finally, he purchased umbrella policy with $1.0 million limits. Since his claim clearly has a value that exceeds his $300,000 “UM/UIM” limits, we will tap into the umbrella to resolve the case. While he, like most of us, hoped he would never need it, the “once-in-a-lifetime event” happened to him between the end of his workday and dinner one night!

[1] Boring Legal Sh…er…. Stuff

[2] Steve. Magas is an avid Ohio cyclist and trial lawyer whose practice focuses on protecting the rights of riders. Steve has handled more than 100 “bike cases” ranging from traffic tickets and crashes involving minor injuries to complex products liability cases and crashes leading to brain injury or death. Steve writes regularly on legal issues relating to cycling and has lobbied for cycling issues at the local, state and national level. Steve’s unique “Bike Law” practice has been featured nationally in Lawyer’s Weekly USA, and locally Cincy Business magazine, Cincinnati magazine and the Cincinnati Post.

BIKE LAW 101 - THE BLS FOR THE TOURING CYCLIST - Part TWO - ESTATE PLANNING

2007-08-14T16:40:00.000-05:00

BIKE LAW 101

THE B.L.S. [1] FOR THE TOURING CYCLIST: Part TWO – ESTATE PLANNING

By Steven M. Magas, The Bike Lawyer[2]

Last month I ventured away from safety, accidents and riding the bike to consider the BLS – Boring Legal Stuff – related to insurance and bicycling. This month the second [and last] BLS installment: Estate Planning.

Why does the bicyclist need to worry about “Estate Planning?” What the heck IS “Estate Planning” anyway? Sounds rather vague and morbid! Why should a BICYCLIST worry about Estate Planning for a few minutes instead of cleaning her/his trusted steed?

“Estate Planning” for most of us [us NON-millionaires, that is] consists of getting a will prepared, as well as possibly a trust and, even more important for the bicyclist, a couple of “Powers of Attorney.” For most people, their estate planning goals are to provide financially for their surviving spouse, protect their assets, insure that their children are physically and financially cared for, minimize cost, taxes and delay and insure that their plan for the distribution of their life’s work is done the way they want it. Other goals may include providing for children of a prior marriage, making sure that business interests are taken care of, providing liquidity to pay bills and taxes and avoiding family conflict and strife!

Here’s a little “12-Step” program for getting the BLS done in YOUR life!

1. Make a will.

2. Consider a trust.

3. Make health care directives.

4. Make a financial power of attorney.

5. Protect your children's property.

6. File beneficiary forms.

7. Consider life insurance.

8. Understand estate taxes.

9. Cover funeral expenses.

10. Make final arrangements.

11. Protect your business.

12. Store your documents.

YOUR WILL & TRUST

We all would like to live forever, or at least long into our “golden years.” It seems that many adults fear “making a will” more than death or dealing with a life insurance agent! The thought of talking about “end of life” issues scares many people and prevents them from getting their will done. However, the legal effect of NOT dealing with these issues should scare you even more!

Everybody Needs a Will

In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent. If you have small children you should have a will – no question about it – you are committing “Parental Malpractice” if you don’t! Under Ohio law, if you have no will, then the Probate Court Judge determines who will take care of your children until they are 18 years old. Without a will advising the court about who you want to inherit your property, Ohio law tells you exactly who gets it. Without a will or trust in place, your young children take possession of your entire estate, including all life insurance proceeds and such, at the tender age of 18. Failure to have a will or trust prepared can cause your estate to incur taxes of expenses which could be avoided.

What is a Will?

A Will is a legal document in which you:

· Name the Guardians of your children, as well as alternative Guardians if your first choice is unavailable.

· Describe who you want to inherit your property.

· Name the “Executor” or “Executrix” of your estate – the person responsible for gathering up your assets, paying your debts, and seeing your estate through the Probate process such that your property passes to the appropriate people.

· Provide for passing assets to a Trust.

Not just any writing listing your wishes can be a legal will. Ohio law is very specific about how the will must be signed and witnessed. Failure to follow these rules exactly can cause your wishes to be ignored by the Court.

Trusts: Not Just For Millionaires

A Trust is also a legal document. However, trusts can be extremely diverse in what they do. Today, though, we’re going to limit our discussion to a very basic form of trust – one that holds your assets for your children and distributes when they are a little older – say 22 or 25 or 30! During the estate planning process we ask people to look at the life insurance they have purchased, or have available through work, their retirement holdings and all other assets, and determine how much money could be available to their children in the event of their death, or should both spouses die. Often, this ends up being a rather considerable sum of money – more than most people feel like dropping into the laps of their children at age 18!

This is where the Trust comes into play. In your will, you can leave the majority of your estate to a Trust or Trustee, should your spouse be unavailable. In the Trust, you designate when you want your children to have these funds and how you want the Trustee to handle those funds. This distribution can be written in just about any manner that makes sense to you. Want to encourage or pay for college? Your trust can provide for that. Want to give the children a specific sum each year until they reach 25 or 30? Your trust can provide for that. Want to give your Trustee discretion to distribute money to meet each child’s specific needs? Your trust can provide for that. In essence, you figure out what works for you and your lawyer can write a Trust to make it work!

POWERS OF ATTORNEY

What are POA’s?

A Power of Attorney [“POA”] is a legal document that gives someone ELSE the power to make decisions for you. POA’s are of CRITICAL importance to the bicyclist. If you are in a crash and are unconscious or unable to make decisions, a POA gives another person the legal right to make those decisions. The “catch?” A POA must be signed by you BEFORE you are unconscious or incompetent and must contain particular language to be valid after you become incompetent. More importantly, if you do not have health care POA’s in place before you are hurt, your family could be in a “Terry Schiavo” situation, where no one has authority to make medical or end-of-life decisions for you.

Financial POA

In Ohio, a “durable” power of attorney is one containing particular language set forth in the Ohio Revised Code such that the POA will continue in force in the event of the incompetency or death of the person signing the POA. “Incompetence” here means that the mental status of the person signing the POA has changed due to illness or medical condition, injury or otherwise, such that the person is incapable of handling his own affairs. For the bicyclist this usually means an accident-caused head injury which renders the rider unconscious, comatose or in an altered state of consciousness.

In a financial POA, the person you choose will have the power to pay your bills or do anything else financially that YOU could do. A POA can be very broad – the power to everything you could do. Most people are more familiar with a very narrow and limited POA– the pink forms at the BMV which permit you to give somebody else the power to get your license plates or sell your car.

The financial POA must be signed when you are competent. If a motorcycle crash renders you unable to make financial decisions, it is too late to create a POA – your assets may be frozen, unavailable to your spouse or family, and your bills might go unpaid or your credit could be damaged.

The Schiavo Case & “Advanced Directives” in Estate Planning

The Terry Schiavo case was a real medical and legal wake-up call for many Americans. The case provided a public window into an Estate Planning “Worst Case Scenario” – a person who was unconscious, but not “terminal,” who had never prepared any written instructions advising health care providers as to how she wanted to be treated. Today, so-called “advanced directives,” such as a special POA for Health Care and a Living Will, can take care of those issues.

A “Durable Power of Attorney for Health Care” is a legal document that authorizes another person of your choosing to make health care decisions for you if you are unable to make informed decisions on your own.

A “Living Will” is a document that contains your written wishes and instructions for care at the end of life. You can state your preferences regarding aggressive life-prolonging treatment.

Ohio law now specifically provides for “Living Wills” and “Health Care Powers of Attorney”. In fact, a simple Google search reveals numerous websites on which forms for both, approved by the Ohio State Bar Association, The Ohio Hospice & Palliative Care Organization and others, can be found. While you can prepare these forms without counsel, you must read them extremely carefully, fill in the blanks appropriately and insure that the witness and notary requirements are followed exactly. Failure to do so can render the forms worthless at a time when you need them the most!

SUMMARY

For most people, these five documents: Will, Trust, POA, Living Will, Health Care POA – make up their “Estate Planning” package. In addition, I would strongly urge bicyclists to use the Estate Planning process as a time to organize your papers and get them in one place, to consider a safe deposit box for important papers, to review and update their life, health and disability insurance and consider any estate tax issues in their situation. Further, this is a great time to discuss your Estate Planning decisions, particularly your end of life decisions, with others. Morbid, perhaps, but for the casual or serious rider, this could be one of your most important conversations!

GOOD LUCK AND GOOD RIDING!

Steve Magas - The Bike Lawyer!

[1] Boring Legal Shiii …er…. Stuff!

[2] Steve. Magas is an avid Ohio cyclist and trial lawyer whose practice focuses on protecting the rights of riders. Steve has handled more than 100 “bike cases” ranging from traffic tickets and crashes involving minor injuries to crashes leading to brain injury or death. Steve writes regularly on legal issues relating to cycling. Steve offers a FREE CONSULTATION on your legal questions – reach him at 513-484-BIKE or online at BikeLawyer@aol.com.

BIKE LAW 101 - The Politics of Cycling - Becoming an Advocate in TWO MINUTES!

2007-08-14T15:54:00.002-05:00

BIKE LAW 101 – THE POLITICS OF CYCLING & 2 MINUTE ADVOCACY

By Steven M. Magas, BikeLawyer@aol.com

In addition to having had the honor of representing more than 100 injured or killed cyclists over the past 20 years or so, I have also been actively involved in the “politics of cycling.” These political battles have increased in intensity recently and in this article I’m going to show you how YOU can become involved as an advocate in “bike politics” on a National, State and Local level TODAY, within two minutes after reading this article!

THE NATIONAL BIKE SUMMIT

For the past several years the League of American Bicyclists has sponsored the National Bike Summit. Bicycle advocates from all over the country converge on Washington, D.C. for a Wednesday, Thursday and Friday filled with conferences, lobbying, networking and fun.

Wednesday sessions are intense at times – multiple sessions are offered where you can observe the movers and shakers in the bicycling world talking about their pet projects, successes and failures. This year I learned how other cities have implemented incredible bike plans, bike facilities and sat in with a group of lawyers who discussed the Kentucky Supreme Court case upholding a cyclist’s right to use the roads as well as a Colorado cycling group’s incredibly organized use of the internet to its advantage in an intense public relations battle with its State Highway Patrol. At the end of the day, all advocates were brought up to speed on the “hot button” national cycling issues in preparation for a day of lobbying.

Thursday is “Bike Day” on Capitol Hill. Meetings are scheduled with members of virtually every Senator’s “transportation people” as well as House representatives. Our 300+ contingent of cycling advocate each wears a brightly colored cycling pin. Our eight member delegation from Ohio visited almost all of Ohio’s representatives, meeting personally with several. We had excellent meetings with all and found our elected officials very receptive to our agenda. It’s a very exciting day!

In March 2005, we hit Capitol Hill pushing the Transportation Bill. In August 2005, President Bush signed “SAFETEA-LU,” a massive transportation bill that includes over FIVE BILLION dollars for cycling and a Safe Routes To Schools program we have been working on for years! In March 2006, we pushed for passage of a Bicycle Commuter Act that would amend the tax code to provide commuting fringe benefits for cyclists! That bill was introduced in May, 2006.

YOU can participate. Go to www.bikeleague.org. Read the stuff we’re working on. Get email addresses for your local Senator and representatives. Send them a note urging them to support the bills! Better yet, GO to Washington with us next March. It’s a great time to be there! Bring a bike. Learn how to lobby. Meet your representative. Ride the Rock Creek Parkway and be part of your government!

HOT ISSUES AT THE STATE LEVEL

On Tuesday, May 23, 2006, I rode my motorcycle to Columbus, Ohio and watched a most raucous day of political wrangling on the floor of the Ohio Senate. The GOP/DEM fights were partisan and intense, with the speaker actually ordering the microphone of one of the state senators turned OFF during debate! I was there to provide testimony to the Transportation Committee supporting passage of the “Bike Bill” which the Ohio Bike Federation has been pushing for quite a long time. Our 2:30 pm Conference Committee hearing didn’t start until almost 7:00 pm Tuesday night due to the partisan “politickin” going on!

When the Committee finally met, the chair, Senator Armbrustor, put our bill to the front of the agenda. We had been led to believe that this was a “shoo in” – and that the bill could be favorably voted on by the Committee that evening.

A few of us offered very brief testimony due to the lateness of the hour. Suddenly, things changed. The minority senators offered up a surprise amendment – a Mandatory Helmet Law! This took us by surprise, to say the least. Fortunately, this was on issue on which I have done considerable research and when a question arose over the definition of the word “roadway” in the bill, I was able to provide that information on the spot as well as set forth arguments as to why such an amendment would be unwise. After some snarly debate, the amendment was killed by a partisan vote and the bill was unanimously adopted by the committee. The bill was voted on by the entire Ohio Senate yesterday and passed unanimously. Governor Taft signed it and on September 21, 2006, the Better Bicyclign Bill became law!

You can read about this important bill and the changes it implements to make life better for cyclists at www.ohiobike.org. Last year, the Ohio Bike Federation pushed for passage of another bill – SB 158. We are part of a coalition of bicycling and motorcycling groups urging the state to pass this bill. The bill would increase penalties for motorists involved in “minor” traffic accidents relative to the injuries those “minor” crashes cause. YOU can get involved TODAY by emailing the Senators on the Transportation Committee and thanking them for supporting bicycling in Ohio. You can ask for their support on SB 158 as well! You can get information from the OBF website or go to the legislature’s website which provides a very easy search program to find bills, YOUR representatives and Committee members.

LOCAL POLITICS – GRASSROOTS HELP NEEDED TO PROTECT YOUR RIGHT TO RIDE YOUR FAVORITE ROADS

I recently opened the local “Forest Hills Journal” – a weekly community newspaper that serves my little niche of the county. I was very surprised to see the headline “Round Bottom Road Rough For Truckers, Bikes.” The article went on to describe another raucous political session – this time an Anderson Township Trustees meeting where bike rides were chastised by a business owner.

Round Bottom Road is a mile or so from my house and is an extremely popular route for cyclists due to a lack of traffic, a country setting and nice long, rolling stretches. You don’t see a lot of kids, mostly experienced cyclists riding for fitness or fun. However, Doug Evans, owner of Evans Landscaping, has his business on Round Bottom and every spring his huge dump trucks roll out, providing much of suburban Hamilton County with mulch, topsoil, gravel, boulders, sod and more. Mr. Evans decided to go to the Trustees meeting to complain about those pesky bikers.

Mr. Evans’ reported remarks were, at best, callous as he took the “This road ain’t big enough for both of us” approach of a Texas gunslinger. He complained that “something” has to be done about these bikes on the road before some car or truck wipes out “not 2 or 3 but 10” bike riders. His key point seemed to be that HE and his business “paid taxes” and bike operators do not.

I wrote a lengthy letter to the reporter, Liz Carey. I explained that yes, bicycle riders DO pay taxes – those of us who work for a living anyway. However, the roadways of the State of Ohio are open to ALL vehicles regardless of whether the operator pays taxes – cars, trucks, busses, bicycles, slow moving farm equipment, Amish buggies and more. The fabric that makes up “traffic” in Ohio is very wide and brightly colored. I explained that cyclists have the legal right to ride, a right which was affirmed by yesterday’s vote in the Ohio Senate! I explained that Ohio law requires his drivers to accommodate cyclists. I also stated that if cyclists were violating the law, riding more than two abreast or otherwise, they should be ticketed just as motorists should be ticketed for improper passing or other concerns.

In addition to sending this letter to Ms. Carey, I copied the Presidents of the Cincinnati Cycle Club and Queen City Wheels, a local racing club. I got those emails from a quick web search. I also copied members of the Ohio Bike Federation, with whom I serve on the Board. Finally, I copied the members of the Township’s “Transportation Advisory Committee” which deals with promoting cycling in this area.

Since this initial burst of energy, the Round Bottom Road issue has repeatedly come up with more and more cyclists adding voices of support. It’s grass roots advocacy at its best!

YOU can become involved in this or other local issues. Watch the news for public statements that challenge our right to ride on the roadway. Send a note supporting cycling to your local paper or your local politicians. Volunteer to work on committees supporting cycling in your area. Keep the pressure on our elected officials. They work for YOU and need to know what YOU think is important! Politicians are also discovering that being Pro Cycling is good politics. People LIKE to ride. People WANT to ride. People WANT cycling facilities. People WANT to spend tax money on public projects that add to the joy of cycling.

In TWO minutes, YOU can become an aggressive, active and educated advocate for cycling at the national, state or local levels! WHAT ARE YOU WAITING FOR? Crank up the computer and let’s goooooooo!

[1] Steve Magas is an avid cyclist and Ohio trial lawyer who has handled more than 100 “bike cases,” representing injured or killed cyclists involved in car/bike crashes, dog attacks, injuries from faulty frames or components or insurance issues. Steve is an advocate for cycling, lobbying at the national, state and local levels, writing articles and essays, and representing cyclists pro bono in important cases. His unique "Bike Law" practice has been featured nationally in Lawyer's Weekly USA, and locally in Cincinnati magazine, Cincy Business magazine and the Cincinnati Post. Steve offers a FREE consultation at 513-484-BIKE or toll free at 888-883-2600. Steve is quick to respond to your emails: BikeLawyer@aol.com.

BIKE LAW 101 - Protecting Your Right to Ride When Tragedy Strikes

2007-08-14T14:37:00.000-05:00

BIKE LAW 101 – PROTECTING YOUR RIGHT TO RIDE WHEN TRAGEDY STRIKES

By Steven M. Magas, Attorney At Law[1]

Anthony Gerike was the operator of a motor vehicle which, on Sunday, July 16, 2006, went left of center and drove into a group of ten or so riders. Tragically, two riders, Amy Gerhing and Terry Walker, were killed. Both were Cincinnati Cycle Club members out for a ride with friends on a gorgeous Sunday morning. Both were avid cyclists who trained and rode for fun and for “causes.” Both were just really nice people.

The following week brought television and radio news coverage, Memorial Rides, interviews with the Club President and friends, and heated discussions on the club’s Forum. What can “WE” do to protect our right to ride when tragedy strikes? What can YOU do? What can YOUR CLUB do?

What “we” can do is continue to ride and ride “visibly.” We need to continue to use the roads, continue to treat motorists with same level of respect we demand from motorists in return. I was forced to ride one of the C.C.C. Memorial Rides for Amy and Terry on my motorcycle due to meetings I had to attend before and after the ride. I was very grateful at the respectful way I was treated by the mourning cyclists. Riders would signal me as I slowed to pass, to let me know it was OK ahead. Riders smiled and waved. The hand signals I received were all of the friendly variety with none of the single digit gestures that sometimes crop up.

This behavior reinforced a common theme I’ve written about for many years. When “we” ride, and by “we” I mean each and every person who rides a bike on the roadway, “we” become Ambassadors for Cycling. The motoring public’s perception of cycling and cyclists is shaped by each encounter a motorist has with cyclists. Watching cyclists blow through red lights or stop signs, ride 3 or more abreast or cut dangerously through traffic causes that perception to tick in a negative direction ever so slightly. Behavior in the nature of what I experienced generates a very positive response – these cyclists don’t want to hold me up, they want me to get by and will help me do so safely. Watching cyclists behave in a predictable, “vehicle-like” manner on the roadway only enhances our reputation in the eyes of motorists and causes the meter to be calibrated in positive direction. EACH encounter is important and EACH of us has to remember we are an “Ambassador for Cycling” at all times!

What can YOU do when someone is hurt or killed in a tragic crash caused by an errant motorist? Provide support for the families of the victims. Get involved. Talk about the issues raised. Use the crash to advise your non-cycling colleagues about the rules of the road. Use the crash to emphasize the overall SAFETY of road cycling – deaths and crashes are NOT commonplace, but an aberration. Use the crash to tell the world that we’re on the roads and we’re here to stay. Don’t let print or radio voices start a “Let’s Put Bikes On Bikepaths” campaign. Write letters to the editor. Call into radio shows.

In my experience, such tragedies frequently result in knee-jerk responses by local or state legislators to “take action” in order to “protect” cyclists. This “action” usually results in cyclists being banned from a particular roadway or being ordered to wear helmets or some such thing. Your swift and visible [letters] or audible [call in and talk!] action declaring, not defending, our right to the roadway and supporting strong police and prosecutorial action against those who maim or kill cyclist will assist in protecting our right to the roadway.

What can your CLUB do in response to tragedy? One of the first things a club needs to do is to prepare media statements. Frequently, in a high profile cycling death the print, TV and radio media look to the President of the local club for comments. These need to be crafted carefully to express condolences for the families, outrage at the misbehavior leading to the deaths and support for roadway cycling. This is an “education” moment and the words and image of the club need to be chosen and presented with care. Further, the club needs to have someone obtain the police report and other “facts” available to avoid making embarrassing misstatements over the airwaves or in the paper!

I’ve advised many groups that one of the most important things a club can do is track the criminal or civil cases that arise out of such incidents. By monitoring these cases closely, a club can insure that the case is being vigorously pursued by the prosecutor and police and not just swept quietly away. Cyclists can be encouraged to attend pre-trial hearings or other events to keep up the media coverage.

If a case is NOT being vigorously pursued, the club can contact the police or prosecutor to find out WHY. Sometimes there are evidence questions that make a prosecution difficult. For example, did you know that year after year statistics show us that 20-25% of ALL cyclists killed each year have a blood alcohol level exceeding 0.08%? In such a case, a prosecutor may decide that it would be difficult to convince a jury that the actions of a motorist, not the cyclist, “caused” the cyclist’s death.

In this digital age, a club should also publish information about important cases on its website. When I handled the State v. Selz case, defending Steve Selz against charges that he “impeded traffic” by “only” going 17 mph uphill from a standing start, I allowed the Ohio Bike Federation to publish ALL of the arguments I filed with the court on its website. When the judge ruled against Steve at trial, we published the trial transcript [it was short] and my brief in the court of appeals. When the court of appeals ruled in Steve’s favor, we published that ruling as well. The OBF encouraged cyclists to send emails to the police department and city in question, expressing their views of the way Steve was treated and I understand that MANY cyclists did so - the city received emails from all over the WORLD on this case.

To keep track of these cases, you may need to track down a bike-friendly lawyer who is familiar with the local court system. Many, but not all, Ohio counties have all cases available online. Sometimes there are some tricks to tracking them down, sometimes you need to be a lawyer to access the webpages or the specific documents. However, every piece of paper filed in every case is a public record. The schedules are public documents and the resolution of the case must be done in public. If you learn your way around your local Clerk of Courts office, or webpage, you can figure out what is happening with any case.

In the State v. Gerike case, Mr. Gerike was ultimately charged with eight counts, including six counts of Aggravated Vehicular Homicide – a second degree felony. When those charges were announced, I, for one, breathed a sigh of relief. These charges told me that the Prosecutor had the guts to go after the most aggressive charges available. Mr. Gerike’s case came up for trial in early April, 2007. After a week of heart-wrenching testimony about his actions and the crash, the jury came back with guilty verdicts on the six most important counts, Aggravated Vehicular Homicide, and finding him not guilty only of leaving the scene.

The Cincinnati Cycle Club monitored Mr. Gerike’s case through several postings on the Forum by me and other members. I also communicated several times the Assistant Prosecutor handling the case due to some information that came to me about Mr. Gerike’s activities, and I was able to pass along those comments to the Club. Several CCC members attended parts of the trial and the verdict hit the website hours after the jury came back.

This story is not over. The judge has taken note of the cycling community’s involvement in this case. The sentencing hearing is May 31, 2007, and the judge has set aside three HOURS for comments from family and friends of the victims and members of the cycling community – a highly unusual procedure. Cyclists are now being asked to email letters with their thoughts on sentencing to the prosecutor who will pass them along to the judge. Cyclists can also sign up to say a few words at the sentencing hearing. The media, which provided tremendous coverage immediately following the crash, is expected to heavily cover the sentencing.

Deaths of cyclists are fairly rare in Ohio – 10-12 per year on average. Don’t let a tragedy lead to REDUCED rights for all cyclists. Get involved. Support the families. Support our ride to use the road!

GOOD LUCK AND GOOD RIDING…

[1] Steve Magas is an avid cyclist and Ohio lawyer who has handled more than 100 “bike cases.” His practice focuses on personal injury and wrongful death cases but also includes advocacy work such as working on cycling issues at the local, state and national level. He offers a FREE Consultation and can be reached at 513-484-BIKE or via email at BikeLawyer@aol.com. Some of Steve’s numerous articles can be found on the “Bike Law” page of the Cincinnati Cycle Club website [www.cincinnaticycleclub.org].