SCHLEGEL v. SWEENEY– the Bike Trail Appropriation case – was released by the Ohio Supreme Court this morning… and… it’s complicated… and … it’s not over… and it’s subject to more litigation… and more appeals… but, as of today, the Park District gets to move forward in its bid to acquire land for a bike trail in Mahoning County.

I’ve written about this case in the past… it’s… complicated… but the bottom line, as of today’s very rare 7-0 Ohio Supreme Court decision, is that the “appropriation case” filed by the Mill Creek Metropolitan Park District against a land owner to acquire property to build a bike trail may progress. The case is not over, however, and provides some lessons in power & tenacity.

“Appropriation” is a means for government entities to take property from private citizens for government purposes. Based on the power of “eminent domain,” this allows the government to obtain private property it needs for public projects and requires the government to pay Fair Market Value for the property. For example, let’s say the government wants to widen a road, add lanes … and it doesn’t have enough room to do that… it can try to negotiate a deal with all the landowners to buy enough land…or it can file an appropriation action to take it.

You may think this is crazy- the government taking your property…but… This power of eminent domain is found in both the Ohio Constitution and the US Constitution.

Wait, say WHAT?

Yep and the place where it is found is somewhat surprising… You know that 5th Amendment we hear so much about? Miranda Warnings… Taking the 5th… the right of someone charged with a crime to not be forced to talk? Well, if you read the ENTIRE 5th Amendment it does on to say “…nor shall private property be taken for public use, without just compensation….”

The writers of the Constitution were not going to allow the government to simply TAKE your property – it could only be taken for a “public use” and the government has to pay “just compensation.”

The Ohio Constitution is similar: “Private property shall ever be held inviolate, but subservient to the public welfare.”

The Ohio Constitution talks about “public roads” but has a more general catch-all clause that applies “…in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

So, bottom line, the government can take your property for public use- but has to pay fair/just compensation to you.

The past two years have been AWFUL in Ohio as far as traffic safety – especially for the most vulnerable roadway users- cyclists & pedestrians.

In 2020, nobody was driving – the pandemic was in full swing – workers were home – there was no place to go – and yet, despite billions of fewer miles traveled, cyclists were mowed down by cars at an alarming pace. There were 20 fatal crashes in Ohio in 2020.

Ohio had a horrific TWENTY-EIGHT cyclists killed in 2021, a “record.”

In 2022, so far, we have had only 5 deaths from January 1 – July 31. These are summarized below. However, this is not unusual. We typically have a few fatalities leading up to the time school is out and summer arrives and then peak riding season starts. We tend to see a cluster of fatalities through the summer and again in September, when darkness comes earlier but the weather remains fantastic for riding. September is also the time of year when the sun is in its most “East/West” position so the sunrise and sunset present the most significant danger on Ohio’s East/West roads…

NATIONALLY

Nationally, IIHS reports that 932 cyclists were killed in 2020 – a 9% INCREASE over 2019, when EVERYBODY was driving.

No passing. What does that mean? In Ohio we have double yellow lines – these generally forbid passing but… in 2006 we were able to get an amendment to the law that allows motorists to across a double yellow if conditions are ripe. That change was meant to help motorists, and benefit cyclists, particularly on windy country roads with miles of double yellow. The 2006 changes codified what smart motorists did – they waited, made sure passing was safe and then passed quickly, without exceeding the speed limit.

While this change is not widely known, there’s another section of the Ohio Revised Code that is almost invisible – we have two cases pending now and, Monday night, another rider was hit…and killed… the same way… by a motorist choosing to pass a cyclist, illegally, within 100 feet of an intersection.

Ohio Revised Code Section 4511.30:

It’s the third rule that catches drivers – No vehicle may be driven “…upon the left side of the roadway… when approaching within one hundred feet of or traversing any intersection…”

In our two pending cases the insurance company for the motorist has chosen to fight – and ignore the law that bans their driver from passing within the intersection. Both cases are in litigation. One has motions being argued Thursday, the other was filed late last week along with a motion for a temporary restraining order to prevent the insurer from “fixing” the car until we can download the “black box” data which may provide evidence of speed, braking and the like.

In Monday’s crash a 70 yr old man was apparently operating an “electric bicycle” [according to one media report] southbound on Franklin-Madison Road and while he was making a left turn into his own driveway a motorist tried to pass him and slammed into him, killing him.

We don’t know details. We don’t precisely which driveway he was turning into or how far he was from the something unique intersections. As you proceed south on Franklin-Madison you encounter traffic entering from your left at Chamberlin and then some feet farther up there is traffic entering from your right at Keister

As with every fatal bike crash in Ohio we are going to be investigating this case thoroughly – obtaining all possible public records and putting our own review of what happened and why out there.

For now our thoughts and prayers are with the family of the still unnamed 70 yr old cyclist.

2021 was an absolutely awful year for cyclists riding on the road in Ohio and around the country. While riding in Ohio remains “safe,” especially when compared to other large states, the recent trend of increasing numbers of fatalities continued.

I see article after article in the media stating the same fact in many jurisdictions… Speeds are UP… Crashes are UP… Deaths are UP

Deaths were UP in big states and small – Ohio, Kentucky, Florida, California… You can read about it here and here and here and here and here.

In Ohio the DOT reports that 2021 was the deadliest year EVER on the roads

There were TWENTY-EIGHT cyclists killed on Ohio’s roads in 2021, making 2021 the deadliest year ever for cyclists as well.

Ohio has averaged 17-18 cycling deaths annually for many years. That started to tick up slowly around 2010, but that last few years have really been devastating.

In the 21 years from 1994 to 2015 Ohio had 366 cyclists killed – an average of 17.4 per year. In 2015 we saw a high of 26 and since 2015 we have seen a consistent rise in deaths with 22 cyclists killed in 2018, 23 in 2019 and an almost inexplicable 21 cycling deaths in 2020, when actual driving miles were down significantly!

The 28 CYCLIST deaths in 2021 represent the worst year we have seen.

Dogs-
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…

One of the very first “bike law” pieces I wrote, back in the 1980s [written by candlelight on parchment with quill pen as I recall] was about Ohio’s DOG laws. A few things have changed since then… like this funky new-fangled FAX gizmo… but Ohio’s dog laws remain STRONG, especially when applied to situations in which a cyclist encounters a loose dog on the road – the cyclist WINS… period.

Ohio’s Dog Laws
Ohio law has a “strict liability” standard… that means you only have to prove the dog was out, and caused injury, and you win.

You do NOT have to prove “negligence” by the owner- to the contrary, the owner could be completely NOT negligent… using the strongest chain, the best state-of-the-art containment system…doesn’t matter… if the dog gets out and causes Mayhem, the owner is liable.

I posted an “Ad” on Facebook. It was about the new KY & OH Bike Law cards and was seen by a few hundred people… cost about $35 or so. One thing about a Facebook ad is that you are basically inviting people to come to your page and leave their thoughts…

This dude left this thought:

How do people message you if they are dead! It’s not a motorized vehicle, no drivers license or insurance needed to be on the road ways, and you don’t have registration?!? The spandex wearing pedo riders need to just stay off the roads, why would you chance riding up against a semi or 3/4 ton truck who might make an accident and just run you right tf over?!? Wait but you have your go pro and your safe zones!

So yea… Dude… about that…

Hit & Run crashes are an epidemic in the U.S. In 2016 there were 1980 fatal hit/skip crashes resulting in 2049 fatalities. This was the highest number recorded since NHTSA began tracking the data in the 1970s. Of those, 1398 crashes involved NON-VEHICLE OCCUPANTS such as pedestrians & bicyclists. The AAA Foundation for Traffic Safety released its “Research Brief” noting that while there were more hit/run crashes in larger states, when you looked at rates relative to population you find that New Mexico, Louisiana, and Florida lead the league.

Pedestrians and bicycle operators obviously present the hit/run motorist with a slim likelihood that damage to the hit/run vehicle will be significant enough to avoid a getaway.

Last weekend in Ohio we had TWO cyclists killed by hit/run motorists.

In Richland County, the man alleged to be driving the truck that struck & killed 13 yr old Luke Newswanger has been arrested. The crash happened at 9:30 am on Sunday morning. The truck allegedly driven by Bud Thornberry was going in the same direction and struck Luke from behind before driving off.

In College Hill, near Cincinnati, however, a hit/run killer is still on the loose.

I ran across this story in my daily search for bicycle/crash stories from around the country and the world. A 5 year sentence for a driver who slammed into a cyclist with here Mercedes while driving at “three times over the drink-driving limit and 10 times over the limit for cocaine” – The woman smashed into, and killed, the cyclist and kept right on motoring along with her windshield in bits and her bumper left at the scene.

The cyclist, a 61 year old fellow, was riding his e-bike to “… start a night shift at work when Moughan hit him… Wearing hi-visibility clothing and with front and rear lights visible on his bike, it is estimated that he would have been visible to the motorist for 600 metres, or 20 seconds…“

The motorist was non-repentant…

“…Six weeks later, she was discovered passed out on the back seat of a Fiat Punto which had been damaged in a crash with another vehicle, and was found to be over the drink-drive limit on that occasion as well…”

She was charged, convicted and sentenced… the Judge gave her… ta da… Five Years and Two months in prison.

Seems a bit… I dunno… low… for such a crime?

I am reminded by these daily stories about other cases – some I have worked on… some I participated in as an advocate… some I just read about …

I did a post way back in 2010 talking about sentencing in vehicular homicide cases and about how an E/R doc got 5 years in prison for a road rage incident in which two cyclists were seriously injured. In 2016 I posted again on this topic, comparing some sentences issued in a variety of serious cases.

Today I’m looking backwards – and forwards. Back to 2006 – July 16, 2006 to be specific. And back to this man – Anthony Gerike – who’s been in prison since 2007 for causing the crash of July 16, 2006 that violently, horrifically took the lives of two local cyclists- Amy Gehring and Terry Walker – who were part of a Cincinnati Cycle Club Sunday morning ride…

Looking back at the horrific crime … and looking forward a few months to his anticipated release date…