Bike photos by Steve Magas, a race in Walnut Hills, a bike rack at Ride Cincinnati, A ghost bike dedication ceremony and a beautiful bike bell

Protecting The Rights Of Those Who Ride

Steve Magas is Ohio's Bike Lawyer. He has written about Ohio Bike Laws, bike crashes, bicycle advocacy and court cases for some 30 years. Soon we'll be adding a series of features about your favorite Ohio bike shops.

SO YOU CRASHED- DO YOU NEED A LAWYER?

“…Protecting the Rights of Those Who Ride!”

Steve Protects The Rights of Riders.

If you have been injured in a Bicycle, Motorcycle or Car Crash you may be worried paying for your medical bills, you may be incurring lost wages, you may be experiencing pain and suffering like you never could have imagined. You may have an insurance adjustor calling you – being NICE – telling you “You don’t NEED a lawyer- I can send you a check…”
Remember, the insurance company you are dealing with wants to pay you NOTHING AT ALL, if possible, or the least amount of money it can get away with!  If you don’t protect your rights, you may not be able to make a claim, or you may get “BAMBOOZLED” [as the Ghost in the current Insurance Company TV ad says] .

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Why Is Cycling So Popular? ONE Word… OK… Two

I published a fun photograph on Twitter/X a few days ago of a bunch of kids’ bikes parked in my granddaughter’s yard… and made the joke that we had purchased our 4 year old granddaughter a bike and within a day or two she was apparently in a neighborhood gang… it apparently struck a nerve…

In this iteration, it had reached 129,000 views….

Why? ONE Word… OK…TWO

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Remembering Emilee Gagnon – and her killer Lynne Smith

On September 23, 2013, Emilee Gagnon was riding across the country to raise money for M.S. She was from Holliston, MA and riding solo. The sun was starting to go down as she was riding through northern Ohio. Emilee was riding westbound along the right side of State Route 163 near Genoa, Ohio.

Motorist Lynne Smith was driving her 2001 Ford Escape westbound on State Route 163 when she came up from behind Emilee. Smith smashed into Emilee with her Ford Escape, at speed, and later claimed she “couldn’t see” Emilee because of the setting sun. Emilee died from the horrific violent crash.

Now State Route 163 is one of those typical Ohio rural roadways… narrow, straight, flat & fast, despite the 55 mph speed limit.

It runs due east/west and features a wide open rural farming landscape.

Emilee Gagnon SHOULD HAVE BEEN HIGHLY CONSPICUOUS to Lynne Smith. Lynne Smith SHOULD HAVE SEEN Emilee but Lynne Smith told everyone that… surprise surprise… the SUN was setting… just as sunset was approaching…and since it was a nice clear day and the sun was setting… in the WEST no less…and Lynne Smith was driving DUE WEST on SR 163 she was apparently shocked to find that sun was in her eyes- she claims the significant sun glare simply prevented her from seeing much of anything… the Glare did NOT prevent her from tromping on the accelerator and driving dead ahead at “55-58 mph” though…

Driving While Blind? Is that a thing – a crime?

When I googled Sun Glare, the top hits were all from Law Offices telling clients what kind of trouble they could get into by driving into sun glare. I mean, it’s like OBVIOUS right… If you CAN’T SEE THEN DO NOT MOVE A TWO TON BOWLING BALL FORWARD… Pull off the road… stop & wait a minute…

Screenshot

Ms. Smith said she NEVER SAW Emilee Gagnon. Given the make up of this road that seems… far fetched? For how many miles was she not paying attention?

CRIMES BASED ON NEGLIGENCE

In Ohio, we have the crime of “negligent” vehicular homicide. However, it requires proof of “criminal negligence” which is a different type of negligence than your regular old run-of-the-mill street negligence. If you prove a motorist is guilty of negligent vehicular homicide then the WORST thing that can happen to that motorist in Ohio is… ta da… a short jail term, 180 days, a fine, maybe some license suspension…

There are less serious misdemeanor versions of vehicular homicide [vehicular manslaughter] as well as more serious crimes of “aggravated” vehicular homicide, which are serious felonies in Ohio. To jump from “negligent” vehicular to “aggravated” the State must show the presence of one of the aggravating factors listed in the statute such as “reckless” or worse behavior [worse than negligence] or driving without a license or while hopped up on drugs or alcohol… Simply DRIVING BLIND is not on the list. I MIGHT be considered “reckless” but… most prosecutors won’t take that chance.

What do those words mean? From State v. Peck we get the following:

{¶ 11}
 “`”A person is said to be reckless under the section when, without caring about the consequences, he obstinately disregards a known and significant possibility that his conduct is likely to cause a certain result or be of a certain nature, or that certain circumstances are likely to exist.”‘” Bexley v. Selcer (1998), 129 Ohio App.3d 72, 77716 N.E.2d 1220, quoting State v. Pack(1996), 110 Ohio App.3d 632, 636674 N.E.2d 1263, quoting Legislative Service Commission Comment to R.C. 2901.22

{¶ 12} A mere failure to perceive or avoid a risk, because of a lack of due care, does not constitute reckless conduct. Columbus v. Akins (Sept. 27, 1984), Franklin App. No. 83AP-977, 1984 WL 5923. Instead, one must recognize the risk of the conduct and proceed with a perverse disregard for that risk. State v. Covington (1995), 107 Ohio App.3d 203, 206668 N.E.2d 520State v. Whitaker (1996), 111 Ohio App.3d 608, 613676 N.E.2d 1189 (noting that to be reckless, “one must act with full knowledge of the existing circumstances”). 

{¶ 13} In contrast to the actor who proceeds with knowledge of a risk, the failure of a person to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature is negligenceR.C. 2901.22(D). Recklessness requires more than ordinary negligent conduct. The difference between the  terms “recklessly” and “negligently” is normally one of a kind, rather than of a degree. “Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.” (Emphasis sic.) Wharton’s Criminal Law (15th Ed.1993) 170, Section 27; see, also, State v. Wall (S.D. 1992), 481 N.W.2d 259, 262.


Here, Lynne Smith claimed to be oblivious to the presence of Emilee on her bicycle in front of her. In a criminal case if she doesn’t take the stand the Prosecutor would have to prove Lynne Smith was aware there was someone ahead… Maybe an expert could do that but that’s a tough burden. In a civil case for money damages you can just put her on the stand and grill her, allowing the jury to see how she looks and sounds. Proving Reckless vs. Negligent behavior in a civil case, though, doesn’t really net you anything… If someone is driving for a company then reckless behavior will heighten the risk of a big verdict… proof of recklessness might tick off the jury so maybe they’ll award more in damages but it doesn’t change the basic claims as it does in a criminal case.

Lynne Smith was originally charged with misdemeanor vehicular homicide for negligently killing Emilee Gagnon. Her case, State of Ohio v Lynne Smith, was filed as Case Number CRB-1301569 A. All the documents in her case used to be available on the Ottawa County Municipal Court website, but it’s not there any more. At least you and I can’t see it. Also, if Lynne Smith applies for, say, a job driving vehicles for, say, Uber or DoorDash, or she wants to drive a truck or deliver medications for a drugstore or drive a courtesy vehicle for a GM dealer her record as a careless killer is invisible to any potential employer…It is gone & cannot be seen… except by certain members of law enforcement. Why? How?

Read on…

Lynne Smith was charged with a first degree misdemeanor. She plead down & ended up with a conviction in 2014 to the charges of second degree vehicular manslaughter. She faced a MAXIMUM of NINETY DAYS in jail on the lesser manslaughter conviction, but was sentenced to ZERO. The Judge put Lynne Smith on Probation for 2 years and fined her $750.00. The 90 day jail term was suspended pending her completion of probation. Lynne Smith walked out of court FREE to go about her business virtually without restraint. By all accounts, Smith served her sentence without issue and was actually released from her probation early due to good behavior.

MOTION TO SEAL THE RECORD

Ohio law relative to hiding your past convictions has loosened up a bit over the years. You can seal or expunge your record by filing a motion after waiting a year. Even felonies are subject to being hidden. Kill somebody with your car & don’t want anyone to know? Just be good, wait a bit and file a motion to seal the record. Often, you don’t have to tell anyone about it – and you can pretend like it never happened…

Several law schools in Ohio have a rule that requires candidates to disclose prior criminal charges, even if the record is sealed or the matter is expunged. Peter Leasure of the Drug Enforcement & Policy Center at OSU wrote a piece suggesting that schools ought to tailor their rules to be consistent with state law –

Here, a few years after her conviction, Lynne Smith filed a Motion to Seal Her Record- to make it invisible – to prevent future employers, or others studying court data, to see the record of her conviction. She basically filed a motion to whitewash her record as a careless killer… and Emilee Gagnon’s parents, who were notified of then filing by the prosecutor, were mortified…

Emilee’s parents, who live in Massachusetts, reached out to me when they became aware of Lynne Smith’s Motion to hide her criminal record. There was not much they could do. We made their objections known to the prosecutor. The family obtained letters of support from friends and folks who knew Emilee and we submitted those to the Court.

O.R.C. §2953.32 is entitled Sealing or Expungement of Record of Conviction… The new statute set out a procedure for a hearing. The Court set the case for a hearing up near Toledo. Emilee’s parents flew into Ohio from Massachusetts & I drove up from Cincinnati to support them and attend the hearing.

As we waited, there was considerable discussion with the young assistant prosecutor, who had never had a case under this statute. As he read through the statute he realized that the law required the State to put on evidence as to why the record should NOT be sealed. So he needed a witness. While the family could testify about their experiences and wishes, he needed someone to talk about the impact to the community from sealing such a record.

I ended up volunteering to be a sort of “expert” witness in bicycle crash cases and bike research and the Prosecutor ended putting me on the stand to try to explain the importance of these cases being available to researchers, lawyers, legislators and others with an interest in traffic safety and preventing traffic violence. My multi hour trip to Toledo to watch a short hearing ended up being a full day plus time in the witness box! From a news story about the case:

In the end, the Judge issued a disappointing ruling. He granted Lynne Smith’s request to hide her dirty laundry. So the case of State of Ohio v. Lynne Smith, Ottawa County Municipal Court case No. CRB-1301569 A, was simply wiped off the books- it doesn’t exist as far as the public is concerned. Lynne Smith’s careless killing of Emilee Gagnon is swept away… kept alive only online through republications of her misdeeds like this one.

Here’s what Lynne Smith’s docket USED TO look like- you. just can’t find it online any more:

EMILEE GAGNON continues to live on though… In her hometown press she was described by one of her professors as a “walking piece of art” and someone who was a “wonderful student with positive energy.”

So we will choose to REMEMBER EMILEE GAGNON

But…

… we will also choose to NOT FORGET that Lynne Smith killed her, despite there being no official notice of such in her “permanent record…”


Data v. Grief? Numbers v. Gut Punch? Apathy v. Action? Another RIDE OF SILENCE Approaches

I like to study fatal crashes because they give us the most data – investigations tend to be more thorough – more care is [usually] taken in determining what happened. But the crashes tend to be more random… it’s often a matter of inches, or millimeters as to whether one survives the impact with a motor vehicle…or not… Interesting data – and a continuation of what is know a decade-long trend of more more & MORE cyclists killed. 

For those of us who work with, often quite intimately, the families of those killed by road violence, these are NEVER “numbers” – they are real people who were taken from their loved ones too soon, while doing something they absolutely loved… RIDING A BIKE.

Each and after crash and death represents a horrific event, immense grief… a gut punch to the friends and family of the rider who was killed.

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The Legal System “Sucks” – Or Not…

On a Facebook post, someone complained about the legal system:
The American legal system does suck as anyone who has dealt with it will know. Common sense doesn’t apply, and usually the lawyers are the only ones that make the money. They may know that they have no case, but they can hold out and try to get a partial settlement as it may be less than a lengthy court battle. And let’s face it, the insurance companies aren’t the best either as their contracts are written by lawyers to prevent them from having to pay.”

I thought that was a tad wee bit harsh and did not display a full understanding of “the legal system” and responded…

Having been in the “American legal system” for 40 yrs I would disagree. “Sucks” in what way?

Most people who say things about “the legal system” are thinking about the Criminal Justice system. That’s the part that’s in the news all the time. People think “it’s not fair” or “rich people can get out of trouble” or whatever… Most comments along these lines are derived from the speaker’s experience with one case, or anecdotal experiences with others complaining about “the legal system” and are not based on actually working IN the system.

The Criminal system is very different than the Civil court system. In the criminal system people are fighting for their freedom. Civil cases are mostly about money – damages… breach of contract – personal injury – defamation – wrongful death…

THE CIVIL SYSTEM

The “legal system” that I work in – the Civil system – has two very separate lanes – “Litigation” or not. Litigation means a lawsuit is filed and a civil case proceeds towards a trial. You sue someone. They get a lawyer to fight back. There is a judge who sets deadlines & schedules. Depositions are taken. Experts are retained. Eventually you try to resolve the case in Mediation and, if not, you spend a LOT of money on Trial Expenses and you present the case to a judge or jury. You get a result. There may be an appeal, and another. The case comes to end when that is done and you “win” or you don’t.

WHEN IS A “WIN” A “LOSS” IN COURT?

Even a litigation “win” can be a big time “loss” though. When I was defending cases for an insurer I had a case that went to trial in which I represented a semi-truck operator/company. The driver arguably went through a red light at a large intersection. This happened at midnight. A lady whose light turned green drove off and drove into the side of the semi passing in front of her. She had 5 surgeries… neck, shoulder, back, arm, leg… her attorneys wanted a million bucks and did not budge below that. We offered $350,000… so we went to trial.

During the course of litigation I read through 100s and 100s of pages of medical records. In her hospital chart from shortly after her admission it noted an ETOH level…i.e., she had some alcohol in her system. Consulting an expert he interpreted the test result, which was taken some hours after the crash. No police officer had suspected alcohol at the scene. No testing was done. No ticket was issued. Rather, this was a number on one page of test results out of thousands…

Our expert then did some analysis using the “Widmark Formula”- a formula that is designed to go back in time and determine a person’s Blood Alcohol Content hours before the test… he testified that she was at a 0.07% BAC at the time of the crash. At that point in Ohio, the “legal limit” was 0.10%… today it is 0.08%… so her level was a bit below the legal limit … however, our expert opined, based on her testimony about when she STOPPED drinking, that she had peaked at a very high level, around 0.24, earlier in the evening and had come down to the 0.07% at midnight, the time of the crash. To get to these numbers she would have had around 8 shots of liquor during the fairly brief time she said she was drinking, much earlier in the evening.

Was she “impaired” at the time of the crash and did that impairment cause her to maybe NOT SEE the giant semi passing in front of her? These facts go to the two key issues in the case – Negligence and Causation – We were arguing not that our guy was a saint but that there was negligence on both sides of the courtroom. Our expert testified that he believed she was likely impaired at midnight, with a 0.07% BAC, because she had been so highly intoxicated earlier and was still coming down from that.

The plaintiff’s expert got on the stand and tried to say that 0.07% BAC was below the legal limit and that she was likely not impaired…

In one of those truly LUCKY courtroom moments I decided to ask him a question that popped into my head as I was cross-examining him – when I did NOT know what he was going to say:

“Sir, let me suggest to you that you are sitting at home around midnight on a Saturday night and the phone rings. This lady calls you to say – “I’ve been drinking – I had around 8 shots earlier but stopped and I think my BAC is about 0.07% now. Should I drive home or call a cab?” What would you tell her? “

He said the magic words: “Call a cab

During closing I brought in a bunch of shot glasses and lined them up on the jury box. I hammered the alcohol issue. The jury assigned 45% fault to her and 55% to our client. Under Ohio law that means she “wins” the case, but her damages award is cut by 45%. She was lucky, if the jury had assigned 51% to her, as I had argued, she would have been blanked – ZERO Verdict under Ohio law.

Controlling Bartending Counts

However, when the jury awarded damages, they gave her a total of $600,000.00!

However, under Ohio law, the damages were reduced by her level of fault. So the $600,000 verdict resulted in a total damage award of $330,000.00 when reduced by her 45% of fault.

Remember- the insurer had offered $350,000. So even though the jury awarded $600,000, the verdict was a WIN for the insurer. The plaintiff “won” $330,000 but left $20,000 on the table and also had to spend the Trial Money – paying all the experts to testify… probably $15-20,000 in a case like that.

I doubt that Plaintiff’s counsel in that case had ANY awareness that alcohol was an issue when he took the case. They seemed very surprised when we brought it up since the police had put nothing along those lines in the report. When I got the case the adjustor didn’t say anything to me about alcohol. I just happened on the ETOH finding when reviewing page after page after page of medical records and blood test results…

The plaintiff probably didn’t volunteer that she was doing shots at the bar before she drove off that night… it seemed like a slam dunk to plaintiff’s counsel, I’m sure – semi ran a red light – big crash – 5 surgeries- give us a million bucks… Not So Fast buddy…

NON-LITIGATION – PRE-SUIT PATH

Most cases do NOT go to trial. In our office, only 10-15% of our files even end up in “litigation” and most of those resolve. In fact, most of our cases, 80-85%, get resolved before anyone files a lawsuit.

As a young lawyer I was not as good as I am now at “Picking the Winners on Day 1.” Over the course of handling 1000s of injury and death cases, and some 500+ “Bike” crash cases I have developed my Day 1 Pick Em chops. There is a LOT going on inside the lawyer’s head during that first meeting…

1st Meeting/Client Contact

When a new case is brought to the office you often have to make a decision on the basis of a phone call or brief meeting – are you going to take the case – is it a “good” case – or are you going to tell them to look elsewhere? You don’t want to give up a big case, but you also don’t want to spend years working on loser.

You think about a lot of things in a first meeting with a potential client- Are you going to be able to work with the client? Are there facts that hurt the case? Can you LOSE the case? What are the facts surrounding what happened and why? What are the facts surrounding the damages? Are there legal issues? Potential defenses? Factual issues – disputes about what happened? How badly hurt was the potential client – are there sufficient damages to justify the amount of legal time it will take to move the case forward? Who are the potential parties on the other side?Is there a party on the other side from whom you can actually GET PAID? Is there insurance? How much? Can you find out? [In Ohio, probably NOT because they don’t have to tell you.] In an Auto or Bike crash case, does the CLIENT have coverage that can come into play? Uninsured motorist coverage? Medical Payments coverage? Does the client have an Umbrella – would the Umbrella apply to this scenario? What is the likelihood that you will need to litigate the case to get a good result?

All of these factors, and more, are in my brain on Day 1/Minute 1 of Meeting 1 or Phone Call 1.

You do some quick analysis based on 40 yrs of experience… Client seems nice – seems like they’re hurt pretty bad – sounds like the other side is at fault – client has good insurance – other side? Don’t know but they’re driving a nice newer car, so likely SOME type of half-way decent coverage… and you either take the case or turn it down or explain that you’d like to do some additional digging…

Occasionally I’ll take “project” cases – cases that are missing some element – usually damages – but which present some interesting legal issues. Cyclist gets a ticket for not riding “far enough to the right?” Smaller injury but the insurer simply denies a good claim. I may elect to handle that case to try to help set up some good law or help someone get a fair settlement. Can’t do that TOO often or else WE don’t eat! HA! I’m in the court of appeals right now on a pro bono AFRAP case… hopefully we don’t set some BAD law! Ha… [More on that case in another post.]

Because I’m a solo/virtual lawyer I do not carry the “4th Street Office” overhead of a firm downtown. For that reason every once in a while I take smaller damage cases because I can handle them efficiently and get them done without a ton of legal time. Cases which SHOULD be easy for the client to resolve but the insurer doesn’t want to play ball. I can often get those cases done, make a few bucks, and make the client happy…

THE CLIENT IS THE KEY TO THE CASE

Taking a case on Day 1 means looking at ALL of these issues- asking tough questions of your potential clients – “Googling” them and looking at their Facebook and social media posts – sometimes having a private investigator dig into their past. I learned THAT lesson the hard way in another case – many years ago- discussed below.

Today, I also evaluate every client on Day 1 – when I know nothing about them – because that it what a jury would do – I try to be in touch with my Feelings and honestly assess the client… How would this person come across to a judge or jury? Do they anger easily? Can they tell the story effectively without exaggeration or seeming like they’re reaching for more than they’re entitled to? Do they come across as hard working and hopeful or sad and whiny?

Thankfully virtually ALL of my bike clients are GREAT FOLKS… they work hard- they love riding- they KNOW the law and how to ride- They get hurt but work hard to get better. They don’t whine or complain. They just bust their butt to get their butt back on the bike…these types of folks make excellent clients…

In my old case, long before everything was online – before there WAS an “online” – I represented a woman who was driving along & got rear-ended by a huge garbage truck. She had soft tissue neck/back issues. It was a low impact smack – not a lot of damage to the car despite the huge truck. Today these are called “MIST” cases by the insurance industry – “Minimal Impact/Soft Tissue.” Insurers don’t offer much on MIST cases… In my case they refused to pay anything. I was surprised by the aggressive approach… I mean, she got REAR-ENDED so we were going to WIN on liability … and she seemed to have some pain and a soft tissue injury… I didn’t get the insurer’s reluctance to pay. So we worked the case up for trial.

My client’s deposition was scheduled & defense counsel walked in with a VERY thick folder…

“What’s that?” I asked…naively, as only a green young lawyer could ask…

“Oh that? That’s your client’s CRIMINAL FILE … and copies of ALL THE LETTERS SHE SENT THREATENING THE JUDGE…”

“oh… huh… how about that…”

Turns out she had been prosecuted, more than once, for theft and forgery relative to prescriptions, among other things… had done time in prison… multiple felony convictions… [Young lawyer learns big lesson- do a background check on your client – ASK THEM about their criminal history, if any].

While her criminal history was not “relevant” to whether she got hurt when her car was rear-ended by the guy driving the garbage truck, it WAS relevant on the issue of truthfulness and such… the Evidence Rules allow felonies, particularly “…evidence that any witness, including an accused, has been convicted of a crime…” to be heard by a jury, “… if the crime involved dishonesty or false statement…” You can’t get much more “dishonest” or “false statement” than forgery…

Tried the case to verdict. Jury didn’t like my client – thought she was exaggerating what they felt were her minimal injuries. It cost $2,000 to take my client’s doctor’s deposition so that he could say she had soft tissue neck and back injuries. Jury awarded…dingdingding… $2,000… Ouch…definitely NOT a “Win” for me or the client despite “winning” the case…

Every case that goes to trial leaves me with lessons – how to be a better lawyer – how to communicate more effectively… with the client … with the judge – opposing counsel… with the jury.

Today, I go over ALL possible avenues of impeachment with the client very early. Attorney/client communications are confidential and clients are encouraged to be completely HONEST with their lawyers… if I have ANY doubts, we do a full background check… Google can certainly be your friend here…

Once the case is taken in, we start the claim process, gather the records and bills and begin putting the case together for the insurance company. We submit a fully documented demand package along with a lengthy demand letter that analyzes all aspects of the claim.

We settle 80-85% of our cases without litigation.

DEALING WITH INSURANCE COMPANIES

The “Legal System” for cases in MY world involves either A/ Trying to get an Insurance Company to pay or B/ Filing a lawsuit & working the case up for possible Trial.

The court system is what it is – it has rules… and limitations – if you aren’t a lawyer you are not going to know what to do and it’ll be impossible for you to get a good result- court cases have highly trained advocates for each side to make their case – a judge or jury makes a decision based on the evidence the attorneys present. It’s a very sluggish, time consuming, hurry-up-and-wait, expensive system. It takes a LONG time to get through it. THAT is the system- I’m not sure there’s a better one anywhere in the world. Usually the jury does the right thing, but sometimes it seems they don’t. This is why I usually counsel most people to AVOID the court system.

If you are in the Court system then I tell folks to take off your wristwatch and strap a calendar to your wrist b/c everybody gets 30-60 days to do everything. A civil case filed in Jan 2024 will get a trial date in mid 2025. Why? Because there are 100s of cases on each judge’s docket, each vying for trial time ranging from a couple days to several weeks so each judge is VERY busy – and, because it takes a long time to get a case ripe for trial, that trial time will be a year or more from the date the case is filed. Even though MOST cases don’t GO to trial and resolve before trial, you have to have them scheduled. Many judges stack 2 or 3 cases on top of each other each day, knowing that most will resolve before the parties show up for trial.

I’m involved in Civil, not criminal cases – so cases for money – We resolve 80-85% of all cases before we have to FILE a lawsuit. Usually the deadline for filing a lawsuit in Ohio is 2 years from the date of injury/death, sometimes 1 year usually 2. We settle MOST within that 2 year period. Sometimes we HAVE to file suit because the client isn’t recovered. Of the cases that go into litigation, 90-95+% of our cases settle before anyone walks into court. Some settle DURING trial. Every once in a while one goes all the way to verdict.

If I do a good job at picking the winners on Day 1 when we take in a new case [and after 40 years of learning I’m VERY good at it today], then I can usually get that case resolved fairly with an insurer who’s not an unreasonable human being, without anyone going to court and within a reasonable time.

INSURANCE COMPANIES…SUCK

My cases involve injuries or death … and insurance. I wish INSURANCE COMPANIES didn’t SUCK. I wish insurance companies paid fair value for valid claims without the need to effective advocacy on our part.

But they don’t.

Insurers today seem to employ the 3D business model – Delay Deny Defend.

Insurance companies try to push you around – make ridiculous arguments about how it’s YOUR fault that you got hurt when any reasonable person would see through the BS. In any claim of any magnitude the insurer is trying to limit what it has to pay – to pay less than you want. They’ll fight you tooth and nail – ESPECIALLY in any Bike Case. Why?

In a typical BIKE case the insurance adjustor may be completely in the dark on The Law of Riding a Bike. An adjustor may have a book of 400-500+ CAR crash claims they are working on… and then they get a “Bike” case every now and then. They MIGHT read the law – read up on the AFRAP statute or other Bike Laws for the 1st time when they get your case and then spit it at you to tell you that your client screwed up and it’s not the insured’s fault and they’re not paying. [We call that the WAP defense “We Ain’t Paying”]

If there is ANY sliver of an argument an insurer has that MIGHT in some universe allow them to win or cut down your damages they will take it and run with it…every…single… time…

Part of what I bring to the table in these Bike cases is that I know Bike Law – I helped WRITE the Bike Laws – I’ve handled 500 or so Bike cases – I’ve litigated them to trial and appeal. I’ve researched them. I’ve written about the law. I lecture lawyers and judges about The Law of Riding a Bike in the Continuing Legal Education classes that I teach. They can’t make up some BS argument based on a single line in a statute and push me around.

Another part of what we bring to the table is that we can try cases and have a history of trying cases. I’ve tried cases in many different counties throughout Ohio. I have cases percolating right now in about a dozen different counties… from Toledo to Cleveland to Columbus to Cincinnati. We get around and get to know courts and juries throughout the state.

So yes, insurance companies suck… they can be Evil… and often it takes some good lawyering to get them to do what they are legally REQUIRED to do… Pay The Claim…

THE “SHAKE DOWN” ANECDOTES

This idea that lawyers take stupid cases with no legal merit just to shake money out of folks is … folklore.

Lawyers who take those cases are typically not getting paid by the hour- they only get paid if they get results. MOST lawyers cannot afford to take stupid cases because the lawyer will waste her/his time & not get paid. Most of the cases you hear about have SOME legal merit – or else they would get tossed out by the judge before anyone went to trial.

In my world it’s Eat What You Kill. Nobody’s handing me a paycheck every Friday. If I don’t take good cases on Day 1, work them hard on Days 1-300, then get them settled and bring home the bacon on Day 500, then I don’t eat. If I take a stupid case hoping to some day shake money out of an insurance company on a case with no legal merit, I’ll be sitting there on Day 900 with a ZERO jury verdict [or a court decision dismissing the case b/c it has no merit] after spending 100s of hours of MY time and $1000’s of dollars of MY money… that’s NOT where most lawyers want to be…

The cases that are ridiculous to me are those that involve two VERY well financed parties who can afford to pay a team of lawyers $750+/hour to fight each other over some dumb legal issue – and who can afford to pay those lawyers to file motion after motion after motion – submitting briefs, making arguments, taking parts of the case up for appeal. In that case, the company might pay MILLIONS in hourly legal fees…and clog up the legal system for years.

OK, OK… rant over… I think I’ll go Ride My Bike!

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Products Liability – 1990s Aluminum Frame Failure

I ran across this document recently and SO MANY memories came flooding back.

Cannondale sent this Service Bulletin around to shops in 1994. At that point I was in the middle of the case of Surloff v. Cannondale. Dr. Arthur Surloff and his wife Cheri were a couple of bike-loving folks who lived on the intercoastal waterway in Florida. They liked having the 1st of all the newest bike things- the first carbon fiber, the first aluminum frame etc… I think they had like 28 bikes hanging around their gorgeous home like sculptures. When Cheri learned Cannondale was making an aluminum frame bike she called Cannondale directly to order one for husband. Dr. Surloff was a tall guy who needed a tall bike and Cannondale made one for him, which went up on their wall and was ridden from time to time.

On the day of his crash Dr. Surloff took the Cannondale down & went out for a ride. At one point he was going around one of the many traffic circles in South Florida, roundabouts, and a “little red car” came flying up from behind. Dr. Surloff thought he was in danger and looked for a place to get out of the road. He was riding along the inside of the circle, delineated by a curb, when he came to an opening to his left towards the middle of the circle. He went in, but, unfortunately it was actually an EXIT and there was a curb guiding traffic OUT of the middle of the circle which Dr. Surloff hit with the Cannondale.

The bike fell apart at impact. The top tube and down tube separated from the head tube and Dr. Surloff ended up doing a face plant into the pavement – a moment in time that altered the rest of his life.

He was taken by ambulance and diagnosed with a TBI – a brain injury. He came out of that a different man- where he had once been a brilliant doctor, a trumpet player of some renown, and a wonderful husband and father, he came to find that he could not practice medicine any longer – he faced physical, mental and emotional challenges. He had been a neurologist – his wife was a neuropsychologist. We had a video of Dr. Surloff giving a deposition prior to the crash and he was the consummate professional. He tried to do a deposition for a patient some years after the crash and he fell apart, leaving the room in tears….

His wife called me shortly after the crash. I had written a piece for Adventure Cycling about bicycle products liability cases and she tracked me down, at home in Ohio on a Friday evening. I’m not licensed in FL so I enlisted two top notch FL lawyers, John Romano and Mike Eriksen. I was admitted to the FL bar “pro hac vice” or for the purpose of that one case. We started lining up experts, including Jim Green. Jim is an engineer with an expertise in bicycle crash reconstruction who is in NC. I flew to FL the Saturday after Cheri called and met Jim at the then little Fort Lauderdale airport. Dr. Surloff was to meet us… he went to the wrong gate, fell asleep in the waiting area and eventually found us. Like many folks suffering a brain injury he did not…immediately …present as someone with a brain injury. We didn’t appreciate the extent of his deficits until he couldn’t find his car, then got lost getting out of the parking lot and couldn’t find his way to his home. [Maybe letting your brain injured client pick you up at the airport was a “young lawyer mistake.”]

We started on a multi-year journey that day in which we would litigate for several years with Cannondale and face defenses that included comparative fault – a claim that he was going to suffer a head injury ANYWAY b/c he hit the curb – a claim that the bike was not defective- and even a claim that, as a neurologist, Dr. Surloff knew how to fake, and was faking, his injury!!

We retained other experts, including a PhD Metallurgist from Duke who used an electron microscope to shoot images of the frame which showed a build up of stresses at the fracture point, indicative, our expert of improper heating treating. We blew up one of his slides to the size of Door for trial presentation. We took many depositions, including flying up to Cannondale’s HQ, in NY at the time, and learning how Cannondale’s processes for developing, testing and manufacturing bikes worked at that time.

Dr. Surloff’s frame was one of the early aluminum frame bikes Cannondale created. One key to the case was that they tried to use the same basic diameter tubing as they would use to make a metal frame bike… didn’t work… they went to the Fat tubing shortly thereafter… but had some issues with skinnier versions… This was also a very LARGE frame, which added to the likelihood [foreseeability] that this frame would fracture.

During the course of litigation this Service Bulletin came to our attention when a bike shop buddy of mine found it in his fax machine one morning. He knew I was suing Cannondale and sent it over to me. The document points out that Cannondale was aware that frames could fail, needed to be inspected for cracks/failures, and were likely to fail right at the point where Dr. Surloff’s frame failed… We were certainly going to use that in our case in whatever way we could!

The improper heat treating was also a key – one of the coolest things I did in this case was to spend some time on the phone was Gary Klein of Klein bikes. Klein had sued Cannondale over their use of aluminum frame tech. He walked me through the potential issues and helped me develop a plan for cross examining the Cannondale folks during depos. What a fantastic moment!

[Did I end up buying a Klein Mantra Comp mountain bike? yes… yes I did…]

[Did I have beard from 1975 – 2004 or so? Yes… Yes, I did…HA]

In the end, we were gearing up to go to trial some 4 years after the crash. We had our experts. Our team had spent $100K+ on experts… we heard that the defense spent $250K+ [1995 dollars] on theirs. Now, all the defense expenses were covered by Cannondale’s insurer. When you represent the plaintiff, the victim, all of those expenses come out of YOUR pocket… However, we knew that a doctor/specialist who could not practice medicine presented a very large risk to Cannondale and its insurers.

On the eve of trial one of our experts made a “find” in his old files that led the defense to the negotiating table!

Our expert, Jim Green, had been in a case involving a Quick Release failure. [QR cases were all the rage for a while… look up “lawyer’s lips“]. The defense expert had been an expert in Jim’s QR case as well. To “prove” how effective the QR was the defense expert took Super Slo Mo videos of HIM…on a BIKE… running into a CURB at various speeds… in each video the fork flexed and the tire hopped over the curb… his point was to show that the QR did not release despite more speed…

Our expert remembered that he had those videos as we were getting ready for trial. These old VHS tapes were critical… in OUR case the defense expert had testified that the mere act of running into the curb meant that Dr. Surloff was going to crash and likely suffer a head injury… He testified that he did not even want to try to recreate the crash by hitting the curb with a live human on a bike because of his fear that his stunt guy would suffer a brain injury! These videos from the QR case provided Super SLO MO proof that his theory in OUR case was…complete malarkey… and also proved that a solid, non-defective bicycle should HOP THE CURB…. we hit them with these videos, which we were going to use on cross examination, just before trial and the case settled “on the courthouse steps” for significant money…

Dr. Surloff retired… he never practiced medicine again. He did play his trumpet quite a bit – and passed away [relatively young – making me wonder about the impact of his brain injury on his life expectancy] in 2011.

Just a fascinating case for a young lawyer to “get” and be a part of. Teaming up with renowned trial lawyers like John and Mike, and fantastic experts, was like getting paid to go to Grad School.


Are Cyclists INTENDED Road Users in YOUR State, or “merely” Permitted?

Last week a case came out of Illinois that has bicycle legal folks, the 3 or 4 of us out there, talking a lot. To understand THAT case you have to understand a bit about another IL case from a few DECADES ago…

Back in the late 1990s there was an Illinois case that had a VERY bad result for IL cyclists – Boub v. Township of Wayne, released 10/22/1998. Mr. Boub was injured in 1992 while riding his bicycle in Wayne Township, IL. He was riding across a one lane bridge. The bridge surface consisted of wooden planks and the asphalt between the planks had been removed during a bridge renovation project.

You can predict what happened…

Boub’s bike hits the space, tires get stuck, and he goes head over handlebars, suffering injury. He sues Wayne Township for failing to keep the road/bridge in good repair.

Streetsblog Chicago recently reviewed the Boub case while discussing the new one and posted this shot of the bridge, now concrete, that took out Jon Boub while he was on a training ride:

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DOGS: With Friends Like These…

BIKE LAW 101

DOGS: WITH FRIENDS LIKE THESE…

By Steven M. Magas, The Bikelawyer

Ohio Bike Lawyer – Steve Magas

A DOG POEM

Dogs are said to be man’s best friend,

I’ll grant you all that much…

It’s just hard for me to call him “Pal”

While he has my calf for lunch!

I love dogs… I’ve got a wonderful pup who is roughly 40 pounds of sniffing, drooling, chewing, running, barking energy. However, dogs continue to be a huge problem for Ohio cyclists, particularly in our rapidly changing “rural” counties.

What are Ohio’s “dog laws?” Is there a state-wide “leash law?” What is the so-called “One Bite Rule?” Who do you complain to about dog problems? How far can you go to protect yourself if you are attacked by a dog while riding your bike?

What can your local club do help to protect ALL riders? What are your rights if you get hurt? Can you protect yourself from an aggressive dog?

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JUSTICE? It Sure Seems Like It’s Hard to Come By

I have written, and spoken, a LOT about insurance. Why YOU should have it – what kind you should get – what should you watch out for – What sorts of insurance can HELP cyclists if they get into a crash with a motor vehicle. How does your Insurance play into your view of JUSTICE?

I was downtown today, a rarity in this day and age of Zoom calls with judges. I was downtown to support a client who was hit by a car. The client was a regular bike commuter. On his pre-sunrise morning ride he was, as always, well lit up with reflective gear and bright, operating, “legal” front/rear lighting. He was on a main road waiting to make a left turn so he was well into the lane when a car came up from behind and just slammed into him.

The motorist appeared to just… keep going … a bit before she finally stopped… a few hundred feet down the road. There were two key witnesses – one was directly behind the offending motorist and one was ahead, waiting to pull out of a side street. When the client was struck, bike parts flew in the air and landed on the next car, the witness behind’s car. The witness ahead saw the crash play out and was shocked when the lady kept going… When he spoke with the motorist she seemed to have no CLUE about what had just happened

Eazy/Peazy Slam Dunk right? Well… you’d THINK… but… Justice can be slow… and hard to come by…

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THE KING CAN DO NO WRONG

THE KING CAN DO NO WRONG 
We’ve been working on a couple briefs in a big case here at the BikeLawyer’s World HQ. Chris Carville, the KY BikeLawyer, and I represent a fellow who was hurt by a “traffic control device” – a gate next to a roadway – which was able to be moved into the roadway due to its deteriorated condition – we sued the city & a park district.

Suing a city or county or trail or park district is never easy. The general rule of yore was “The King Can Do No Wrong”

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