Supreme Court Ruling on Dangerous Dogs

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.

Supreme Court Ruling on Dangerous Dogs

Thursday 26 Dec 2019 by Steve Magas | No Comments

DOGS…

I love Dogs… But… they can be a REAL nuisance to cyclists & pedestrians… To the cyclist they present a couple of problems… first, you could get bit by a dog. However, I’ve done over 50 “dog/bike” cases and in only a few was the cyclist actually bitten. Rather, dogs like to chase cyclists… sometimes they simply run into them …. or in front of them… I had one case where some German Shepherds came onto the road and split up a group of riders, cornering the last one. She tried to stop but fell over and suffered an ulnar nerve injury treated by doctors and her hand… the dogs ran back to the porch. I’ve had cases involving bicycle crashes caused by huge dogs and cases with puppies – cases with vicious dogs that attack and cases with big old friendly dogs that walk up and lick your hand after they caused you to crash!

In each case the cyclist got hurt – sometimes very badly. In each of those situations the dog owner is liable to the cyclist for typical “personal injury” damages. This includes paying all medical bills, wage loss and other out of pockets as well as covering any future treatment, permanent injuries and “pain and suffering.” Since many jurors find dog attacks very scary, the risk to the dog owner is that a jury will award a bigger verdict. In each case reflected above we successfully recovered money from the dog owner -typically through the homeowner’s policy.

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NY’s Torturro Case – New York City PAYS for its Failure to Consider Basic Traffic Calming – Vision Zero measures

Thursday 31 Oct 2019 by Steve Magas | No Comments
Tags: municipal liability, sovereign immunity, Vision Zero

In 2017 New York’s highest court upheld, in a 6-1 decision, a judgment against NYC in a case in which a young cyclist was struck and killed by a criminal motorist. The case was crystal clear against the driver. The motorist had a long, ugly history of bad driving – speeding -driving without a license. But the family’s attorney took another approach- an extraordinary argument. He sued the city …claiming the city’s failure to apply some traffic calming measures to a street KNOWN to be horribly dangerous was a contributing factor to the crash… The Jury agreed, assigning 50% liability to NYC, 40% to the motorist and 10% to the young boy who was killed while riding at night.

The case – Torturro v. City of New York – was a 6-1 decision from NY’s highest court. It held, in essence, that NY cities faced possible tort liability to victims of crashes.

Greg Shill wrote a short summary of the case here – https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2961099

Anyone arguing in favor of a “Vision Zero” policy should know this case backwards and forwards as it presents a road map for imposing significant liability on a city, in the right case, for failing to implement some “Vision Zero” ideas …

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COMING SOON…ish… A Book… YouTube Videos… Podcasts… All the COOL KID stuff!

Thursday 26 Sep 2019 by Steve Magas | No Comments

BIKE LAW 101

For the past few years I have been presenting a “talk” to bike clubs and groups, which has morphed into a “Continuing Legal Education” class for lawyers & Judges. I call it …well… I call it a lot of things… but mostly I call it BIKELAW 101.

I delve into the History of the BIKE- it is a very VISUAL Powerpoint that starts on Day 1, with Karl Von Draise’s two-wheeled “hobby horse” invention and moves through the BoneShaker and the Penny Farthing and MANY other colorful and unique wheeled mobility devices before settling on The Safety.

I talk about how the BIKE CHANGED THE WORLD. How the Bike impacted Culture… Society… the Law… How the Bike fueled the Women’s Movement back in the 80s… um.. that’d be the EIGHTEEN EIGHTIES…

I use all of that to try to help folks understand the PASSION we bring to Cycling today… not just racing … or touring… or doing…whatever it is …hipsters on fixies do… no… I try to get to the fundamental question… the basic core of the DNA that drives us to ride… Here it is…

Are you ready…

The suspense is killing me…

OK…OK… Here is Cycling’s little secret…

Cycling Is FUN!

That’s it… you get on the bike and it’s FUN… it’s fun to move about … it’s fun to coast… there’s nothing un-fun about it…

The great actor/comedian Robin Williams was quite the cycling fanatic… he said:

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One of My First “Big” Bike Cases – Litigating Against Cannondale

Thursday 30 May 2019 by Steve Magas | 1 Comment

A thread on a Facebook cycling page about Klein bikes reminded me of one of the early “big” bike cases I worked on … a 1980’s products liability case against Cannondale in Florida.

My client was an MD/neurologist. He and his wife, a PhD neuropsychologist, were huge cycling fans and would get the “first” of everything that came out in the bike world. They lived in a gorgeous home on the intercostal waterway near Fort Lauderdale, FL and had something like 28 bikes hanging on the walls of their home like sculpture.

She ordered him an aluminum frame bike from Cannondale right after they heard Cannondale was making them. She called the factory directly to place the order. He was a tall guy and the frame was … well… a very large frame. This was before Cannondale figured out that they needed “fat” tubes- the big frame tubing was the same diameter as steel tubing of the day…

The bike was ridden a bit and spent a lot of time up on the wall. One day the doc took it down and took a ride. He got chased by a little red car around one of Florida’s traffic island/roundabouts. He saw an opening an ducked into it to try to get away from the car. Unfortunately, he hit a curb – and the head tube sheared off completely from the bike frame… The doc did a face plant into the pavement and suffered a brain injury which prevented him from practicing medicine.

I got a call here in Ohio from the doc’s wife down in Florida on a Friday night and hopped a flight to FL Saturday morning. I brought two excellent FL product liability lawyers into the case and we worked it… and worked it… for several years. They did the heavy lifting, by far… I got to travel to CT & take the depositions of the Cannondale people. We retained a crash expert who analyzed what happened and a PhD metallurgist who examined a bit of the frame under an electron microscope & told us that the aluminum frame was improperly heat treated, causing weak spots right where the head tube snapped off. We heard that the defense spent $250K+ in experts. Our team spent well over $100K as well.

During the course of our case Cannondale issued a shop bulletin warning to all bike shops to be on the lookout for cracks in their frames… right in the area where our bike failed… so we figured we were clearly on the right track!

As the case moved along towards trial in FL we were able to fight off the defense attacks pretty effectively. However, they really seemed bent on taking the case to trial Then… our expert found a key video- from a completely different case – which really swayed the case towards settlement.

One theory of the defense was that when the doc hit the curb he was probably going to crash anyway, regardless of any defect in the bike frame – and he was likely suffer a head injury. In fact, the main crash reconstruction expert for the defense even developed a little video, showing a “stick man” on a “stick” bike… very primitive but hey it was 1980s technology…

However, our expert remembered that the main defense expert had been an expert in a Quick Release case some years earlier. In THAT case his job was defend the QR company in a case in which the QR came apart or failed when a bike hit… a curb. To help do that the expert produced a video- in Super Slow Motion – which showed him riding a bike into a curb at different speeds…in each video the front fork flexes and the wheel hops up the curb… i.e., the QR didn’t “fail.”

In our case the expert had opined that it was “too dangerous” to have a human ride a bike into a curb [since their theory was that the crash/head injury was unavoidable. Our expert was also in that old QR case – for the other side – and had the SloMo video buried in his files …one he found it we were able use that video to show that the defense theory of “oh he was going to crash anyway” was just BS… That video put the entire defense on the defensive as the credibility of their main expert was washed away…

Eventually we settled on the day of trial – literally on the Courthouse steps. Sadly, the doc passed away some years later as complications from his injuries caught up to him…

Part of my research in that case involved learning about aluminum and heat treatment processes. To that end I enjoyed having a long conversation with Gary Klein one afternoon as he had developed a process, and ended up in litigation with Cannondale over it…

https://law.justia.com/cases/federal/appellate-courts/F2/884/1399/464210/

Everything Changed in 2009… I Wonder Why…

Tuesday 14 May 2019 by Steve Magas | No Comments
Tags: pedestrian, statistics

Pedestrian crashes SEEM to be in the news a lot… it SEEMS like there’s a bunch of them, right?

Well… the data confirms that.

The GHSA looked at the data. First they compared 2008 to 2017. They found that overall traffic deaths were 6% LOWER in 2017…but… pedestrian fatalities were up a whopping 35%! So while all the Car Safety Experts are walking around patting themselves on the back on their success in reducing fatalities, the MOST VULNERABLE users of the road are experiencing more terror and mayhem now than they did 20 years ago…

What’s going on?

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GUILTY PLEA IN A “SUN GLARE” CASE

Tuesday 15 Jan 2019 by Steve Magas | No Comments

[h/t to Richard DeLombard for this link to a case I’ve been following from afar.]

A cyclist was killed in a Boston Heights, Ohio car/bike crash and the motorist was charged with vehicular homicide. Yesterday [1/14/2019] he plead guilty to vehicular manslaughter.

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2018, BY THE NUMBERS, WAS NOT A “GOOD” YEAR FOR CYCLING IN OHIO

Tuesday 15 Jan 2019 by Steve Magas | 2 Comments

As folks who read here regularly know, I’m a numbers guy. I got a Math degree WAY back in 1979 [I think we each had to buy an abacus] and planned on teaching Math [and coaching baseball and volleyball] before making a right angle turn into law school. I have always enjoyed looking at the statistical side of things. For the past 20+ years I’ve looked pretty hard a cycling statistics, and crash statistics, in Ohio and throughout the US. I’ve also reviewed the stats historically, and taken Deep Dive into every fatal bike crash in Ohio in recent years. Unfortunately, the early 2018 statistics indicate that Ohio cyclists had a pretty lousy year on the roads.

Over the past 20+ years in Ohio we’ve averaged around 15-16 fatal crashes annually in 1500 or so bike crashes that are reported by police. Given that Ohio is the 7th largest state, with 11.7 million people, that is a remarkable safety record. However, our last few years have seen an uptick in fatal crashes. Our 25 year average annual fatality number is now 17.0 –

The past 25 years of basic Ohio bike crash data looks like this:

Reordered to from least fatalities to most the data looks like this:

What’s the reason for the recent uptick? Is it even an “uptick” or are the numbers so small here that we can’t really draw any conclusions from a change of a couple either way? When your sample is 17 or so and the numbers vary from 9 to 25… and the events are…sort of random.. you’ve got to wonder what slight ups and downs mean. The average is 17 cycling deaths in Ohio now, and the median is 18.

The last 4 years certainly look like a bit of an “uptick” in cycling deaths – 25-18-19-21. Is this related to an uptick in bikes on the road – a byproduct of the recent Bike Boom? An uptick in distracted driving? An uptick in dumb motorist/bicyclist behavior? An uptick in “infrastructure” or other bike “facilities” that often seem to put cyclists in a lousy position? An uptick in speeding [or a downturn in speeding enforcement]? An uptick in drugged up driving?

I don’t have answers… only numbers. In a later post we’ll do a Deep Dive into the fatal crash details…

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A CONSTITUTIONAL BIKE CASE?

Wednesday 9 Jan 2019 by Steve Magas | 4 Comments

I’ve often said that these goofy “Bike Law” issues which take up just about my entire law practice will not be litigated through traffic tickets in traffic court but in cases of severe injury or death, because that’s where the money is… on both sides… the victim is seeking big damages, and the defense team is well-funded by insurance companies and hyper-analyzing the law to find ways to pick apart [some might say screw over] the cyclist’s claim…

I found a very interesting case today in a unique manner. A client sent me a link to a news report from Dayton, Ohio. The City is paying $150,000.00 to a cyclist who was hit by a Dayton Fire Department vehicle. I thought… hmmm… that’s neat… and dug into it.

Turns out that the most interesting details in the case were buried in the court case records which I dug up on the Clerk’s website and have to do with the Ohio Constitution, ORC Sec. 4511.07, Home Rule and the power of cities to pass their own local bike laws…

A Constitutional Bike Case?? Who Knew???

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Remembering TOM SMITH

Tuesday 4 Dec 2018 by Steve Magas | No Comments

Something came up a few months ago and I went down one of those internet rabbit holes… looking for one thing online which led to another and another which led to wonder about what ever happened to my former boss Tom Smith… I was very sad to find his obituary, one which was reposted today in the current Cincinnati Bar Association monthly magazine.

Tom’s obit reads very dryly- as most obviously do- he served in Korea, Captain in the National Guard, returned to go to UC law school – worked in private practice and served as an Assistant US Attorney here – well known and accomplished trial lawyer, especially in the area of white collar crime.

Tom was so much more – he was a trip- so much litigation experience thanks to his work with Lisa Bragança representing whistleblowers which was wrapped up in a friendly, funny and very smart guy. He was constantly chiding me to write and edit and edit and edit and CUT OUT THE LEGALESE CRAP. He reminded me that we represented real people – that “The Law” wasn’t just a set of old books but the system that real people use to solve disputes. He also taught me, and reminded me, of the business side of a law practice. Unlike the court, where i could dig forever on an interesting issue, real lawyers in real firms had to get paid too! 🙂

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Granger Township Logic Makes No Sense…

Friday 26 Oct 2018 by Steve Magas | 2 Comments

In September, in little Granger Township, Ohio, the folks at Bike Medina County presented some bike safety concerns to Township Trustees.

“Members of a local cycling organization approached the Granger Board of Trustees with some concerns and a proposed solution at the board’s meeting Sept. 24.

Beth Schnabel and Lynne Nawalaniec, of Bike Medina County, a group that advocates bicycle safety, discussed the lack of safe cycling routes in the county and expressed their concerns about the conditions of the township’s roads and trails for bikers. They pointed out many county roads are very heavily traveled with no safe routes marked for biking.”

They had a generous donor who was willing to pay some $8,000 for 100 signs reminding motorists about Ohio’s 3 Foot Passing Law for bicycles. The Township folks took it under advisement…

On October 25, it was reported:

The Granger Board of Trustees revisited a previous proposal to reinforce bicycle safety this week.

At the board’s Oct. 22 meeting, Trustee John Ginley said he contacted Medina County Engineer Andy Conrad about a proposal presented at a previous meeting regarding the addition of signs enforcing a 3-foot passing law for vehicles passing bicycle riders on Granger roads. The idea was presented by two representatives of Bike Medina County, a local group that advocates bicycle safety.

Ginley presented several points given to him by Conrad, explaining not all township roads have center lines and the white lines on the sides of the roads are often very close to the edges. He said due to the hzards presented on township and county roads, including motorists who speed or text while driving, he believes the addition of such signs would draw more cyclists to the streets, but also present them with a false sense of security.

Ginley also pointed out it would cost more than $500,000 per mile to widen roads for bike paths. He said he will call the representatives of Bike Medina County and explain the township will not add such signs at this time.

Soooo… I’m clearly not following the township logic here…

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