Everyone should speak out against new legislation in Washington that eliminates funding to protect bicyclists.

The League of American Bicyclists, a great organization in Washington, D.C., that advocates for bicyclists and walkers, is warning this week about a piece of legislation introduced in the House of Representatives that eliminates dedicated funding for bicyclists and walkers and, going even further, removes bicycling from the federal transportation program.

If approved, this legislation will GUT laws and programs protecting cyclists and reverse decades of progress. This is VERY BAD for bicylists!

The legislation, introduced by Congressman John Mica, R-Fla., is called the American Energy and Infrastructure Jobs Act, and you can read more about it here on the House Transportation and Infrastructure Committee website.

The League, on its blog, said the bill reverses 20 years of progress by:

• Destroying Transportation Enhancements by making it optional.
• Repealing the Safe Routes to School program, reversing years of progress in creating safe ways for kids to walk and ride bicycles to school.
• Allowing states to build bridges without safe access for pedestrians and bicycles.
• Eliminating bicycle and pedestrian coordinators in state DOTs.
• Eliminating language that ensures that rumble strips “do not adversely affect the safety or mobility of bicyclists, pedestrians or the disabled.”

The League adds the following comment: “It basically eliminates our status and standing in the planning and design of our transportation system — a massive step backwards for individuals, communities and our nation. It’s a step back to a 1950s highway- and auto-only program that makes no sense in the 21st century.”

Now is the time to get involved! On Thursday, two other House members will introduce amendments to restore dedicated funding for Transportation Enhancements and Safe Routes to School.

All Americans have a stake in this legislation. We all want safe paths, bike lanes, crosswalks, sidewalks and bikeways. Contact your local House member and urge that legislator to support the amendments!

Please act now!

Here are the top 10 reasons to oppose the legislation.

You can go here to find your local representative and send them an urgent message. I urge everyone in Elmira, Corning and the Twin Tiers to speak up today!

Thanks for reading!

Thanks, Jim.

_________________________________

James B. Reed

NY & PA Bicycle Accident Attorney

Ziff Law Firm, LLP

Mailto: jreed@zifflaw.com

Office: (607)733-8866

Toll-Free: 800-ZIFFLAW (943-3529)

Web: www.zifflaw.com

Be sure to do your homework after being injured in a bicycle accident.

I recently received an email from a person who was involved in a serious bicycle accident. His frame snapped in half and he suffered some severe injuries – he needed stitches in his forehead and an elbow and is waiting to see a specialist about a knee injury. He is walking with one or two canes as he awaits his appointment to see an orthopedist.

Because the frame snapped at a weld, the man blamed the manufacturer, believing that the frame’s limited thickness led to the failure of the frame.

I told the injured man that in a product liability lawsuit, WE would have the burden of PROVING that the bike accident was caused by a defect in the bicycle. That would involve bringing in experts, and it is often expensive to retain one or more. Because of the cost, it only makes sense to pursue cases where there is a reasonable prospect of a substantial jury verdict.

I continued, to quote from my email:

Accordingly, I must be very careful to only accept those cases where my potential client has suffered severe, permanently disabling injuries. As a practical matter, this means I must sadly decline those cases where the cyclist has suffered less severe injuries that are likely to completely resolve in a matter of weeks or months.

Very often, we need to wait to see how a client’s injuries are going to resolve before making any final decision to accept or decline a case. It is always our hope that an injured person will quickly recover, as I would much rather have someone have a good, healthy body than a good lawsuit.

Based upon your injuries as described in your email, it is simply too early to tell if your injuries will be severe enough to justify the considerable costs of a product liability action.

Although I certainly don’t mean to minimize the injuries you suffered, it sounds like they may successfully resolve without permanent limitations – at least that is my sincere hope for you.

But after more than 25 years representing the injured, I have learned that none of us has a crystal ball to accurately predict the future so I think it is important that we take the steps necessary to preserve important evidence in your case in the event that it DOES turn out that your injuries are severe enough to warrant pursing a product liability lawsuit.

To that end, I offer the following recommendations (and this is for ALL INJURED BICYCLISTS):

• PRESERVE THE BIKE IN ITS CURRENT CONDITION:  Under no circumstances should you repair, modify or otherwise alter the bike. Failure to preserve the bike and its components exactly as they were at the time of your accident could be fatal to your ability to pursue any sort of claim.
• DO NOT SEND THE BIKE BACK TO THE MANUFACTURER: Sad to say, the manufacturer is generally very eager to get a defective bike back into its control and out of your hands. Very often they do this under the guise of “warranty inspection,” but regardless of what they call it, if you have any thought of pursuing a product liability lawsuit, do NOT give up possession of the bike. If the manufacturer wants to inspect the bike, let them come to your house to do it and make sure that any inspection involves absolutely no alteration of the bike.
• TAKE YOUR OWN PHOTOS OF THE BIKE: Like they say, a picture is worth a thousand words, so take LOTS of good, digital photos of the bike and its components. If necessary, borrow a decent digital camera but make sure you have good, focused photos (both close-up and farther away) of the bike and any defective components.
• TAKE PHOTOS OF THE SCENE OF YOUR BIKE CRASH: Again, these photos can be very useful so make sure to take lots of good photos (both close-ups and farther away) of the accident scene. If there is physical evidence at the scene (i.e., a skid mark, gouges in the pavement, broken reflectors, etc.), get good photos. If possible to do so safely, include a ruler or yardstick showing the actual dimensions of any physical evidence.
• TAKE PHOTOS OF YOUR INJURIES: It is important to document as comprehensively as possible,ALLof your injuries. So take photos ofALLinjuries – bruises, scrapes, road rash, stitches, casts, etc.  Also, take continuing photos as your injuries progress. And record the date that all photos were taken so you will be capable of accurately describing the date each photo was taken.
• MAKE SURE TO KEEP ALL PAPERWORK: Get together a folder of all paperwork regarding your bike: the sales invoice, and any correspondence with the manufacturer or their insurance carrier.
• MAKE SURE TO KEEP A LOG/DIARY OF ALL MEDICAL TREATMENT: Keep a folder/notebook where you can easily track all medical treatment.

I hope this background information and recommendations assist you while you wait to see if your injuries successfully resolve or not.  My own rule of thumb is that I want to make sure someone is symptom-free for at least 3-4 months before making a decision as to how to proceed.

If you are still suffering symptoms after 3-4 months, you should have a consultation with an experienced bicycle accident lawyer. I offer such consultations for free and do them in person, over the phone, via Skype or by email depending on what is most convenient to the client.

If all is well for 3-4 months, then I feel comfortable saying to go ahead and see if things can be worked out amicably with the manufacturer on your own. Sometimes that involves a new bike, payment of the medical bills and lost wages, and occasionally some compensation for your pain and suffering. The manufacturer will usually require you to sign a Release, which is a document that basically says you are giving up any and all claims you may have against the manufacturer in exchange for the money they are paying you. NEVER sign a Release unless you are absolutely, positively sure that you are satisfied with the settlement offer because once you sign that Release, you are done FOREVER. If in doubt, do NOT sign ….

That was my counsel to the bicyclist. I hope you never suffer an injury while riding, but if you do, keep my advice in mind!

Thanks for reading and remember to ride safely!

Thanks, Jim

_________________________________

James B. Reed

NY & PA Bicycle Accident Attorney

Ziff Law Firm, LLP

Mailto: jreed@zifflaw.com

Office: (607)733-8866

Toll-Free: 800-ZIFFLAW (943-3529)

Web: www.zifflaw.com

New York Times Senior Writer John Markoff.

I had a great chat recently with New York Times Senior Writer John Markoff about my experience representing cyclists injured while riding GPS-equipped bikes. On three separate occasions in the last two years, I have been able to use GPS data to enhance cases for injured cyclists.

In Markoff’s article, “Bike Crash Wiped Details; GPS Data Filled Them In,” he writes about a July cycling accident he had in California that left him with serious injuries but few memories of what happened.

He’s recovered, and thanks to his “black box” on his handlebars — a Garmin cyclometer — he was able to piece together a likely scenario of what caused him to crash. He could see that his speed decreased from 30 mph to 10 mph and then zero just seconds before the crash. Using GPS data and Google Maps, he was able to pinpoint the scene of the crash.

He returned to the scene and found a long, thin, deep pothole that likely knocked him from his bicycle.  I call these types of potholes “tire grabbers” because of the very nasty way in which they can literally grab your front wheel causing it to immediately stop and causing you to fly over the handlebars in a very dangerous way.

My comments appear midway through the story:

Lawyers who specialize in bicycle accidents say GPS data can be used by both sides.

“It’s a double-edged sword,” said James B. Reed of the Ziff Law Firm in Elmira, N.Y., who often represents cyclists involved in collisions with cars. He noted that GPS technology was altering the way both car and bicycle accident claims are settled.

“It’s important for people who are representing the injured people or the insurance companies to know how to obtain and analyze the data,” he said. “Frankly, it’s probably going to be a booming new industry for experts.”

GPS data provides a precise, objective measure of the cyclist’s speed at the exact time of impact, which is often very helpful in defusing the common “the bicyclist was going like a bat-out-of-hell” defense.

It sure is fun to have a motorist swear under oath that the cyclist was going “at least 30 mph” and then pull out the GPS data that proves the cyclist was only going 14 mph!

Although I hope and pray none of you in Elmira, Corning, Ithaca or across the Twin Tiers ever needs GPS data for this purpose … but if you ever have the misfortune to be in a bicycle accident … please be sure to preserve the GPS data and be sure to speak with an experienced bicycle accident attorney immediately.  Failure to properly preserve the GPS data or other important physical evidence could easily kill an otherwise good bike accident case.

Thanks for reading, Jim

_________________________________

James B. Reed

NY & PA Bicycle Accident Attorney

Ziff Law Firm, LLP

Mailto: jreed@zifflaw.com

Office: (607)733-8866

Toll-Free: 800-ZIFFLAW (943-3529)

Web: www.zifflaw.com

Bicyclists should know that lawyers play an important role in protecting them in case of an accident.

I am an avid cyclist and bike accident lawyer, and I recently discovered an important blog entry posted by a bicycle accident lawyer in South Carolina.

It’s a “must-read” for ALL cyclists in Elmira, Corning and the Twin Tiers!

South Carolina bike accident lawyer, Peter Wilborn of Bikelaw Blog posted “7 Things You Should Know About A Cycling Lawyer” by Fred Sexton. I cannot thank Mr. Sexton enough for making these very good points about why cycling lawyers are so important for ALL cyclists.

Most of us who handle these cases devote countless volunteer hours supporting bicycle advocacy issues in our community. I long for the day when it will be safe for cyclists to simply ride their bikes. But until that day comes, you can be sure that bicycling lawyers will continue to fight the good fight.

Here is the complete post:

As a cyclist, you are part of a greater community of people who have a similar set of interests and values. You should know that as a member of that community, you have rights and resources that are meant to help and protect you while you are riding. In the case of an accident, here are some things you should know about cycling and the law, and the attorneys who relentlessly work to protect cyclists.

1. First and foremost, cycling attorneys are advocates for ALL cyclists. That means: commuters, racers, beginners, and advanced riders. If you ride a bicycle for any reason, for pleasure, for transportation, for sport, you should know these attorneys are looking out for your best interests.

2. Cycling lawyers will always recommend getting more UM/UIM (Uninsured/Underinsured Motorist Insurance). Every cyclist should increase his or her UM/UIM coverage so if an uninsured or underinsured motorist hits you on your bike you are covered. (Talk to your cycling attorney about the laws that apply in each state!)  Note: in NY, this coverage is often referred to as SUM (Supplementary Uninsured Motorist coverage).  Same coverage, just a different name.

3. Cycling lawyers are here to protect you on the road. By going after the texting teenagers or the speeding sports car driver who hits you, you are sending a message to other drivers and also insurance companies. You are saying we aren’t going to take it anymore! Drivers and cyclists need to be mindful, drive carefully, and share the road. We both pay for it with tax dollars and we both need to obey the rules established on the road.

4. Lawyers that specialize in representing cyclists are probably cyclists too — and probably really nice! They understand the joys of cycling and the dangers as well. If you ride a lot, it is probably not a bad idea to get to know one. You may even be lucky and find one to ride with!

5. Did you know you may have rights against a homeowner whose dog bites you or knocks you off your bike? I’m not suggesting you ride around with kibbles and bits in your jersey. (Certainly avoid attracting attention of our four-legged friends when cycling if possible.) But I’ve heard of a number of people getting bitten or crashing to avoid getting bitten. Then, all too often, they get bitten without any recourse to the dog’s homeowner. You do have rights!

6. You should know that N.C. is one of only four states that follows the principle of contributory negligence. Meaning, if you are even just 1 percent at fault in an accident, (yeah, I know) then the driver’s insurance will try to avoid responsibility for your damages. But even if you think this could be your situation, if you are in N.C. (or any state) and get hit by a motorist, talk with a cycling attorney to see what your options might be.

Please note: The sixth point is NOT correct for bike accident cases in NY and PA, where our law is actually more favorable than the N.C. law he is talking about. In NY and PA, we have what is called pure comparative negligence (rather than the contributory negligence they have in NC). 

Under pure comparative negligence, a defendant motorist is required to pay in direct proportion to the extent they are found to be at fault. For instance, if the motorist is found to be 100 percent at fault, he pays 100 percent of the verdict. If he is 50 percent at fault, he pays 50 percent of the verdict. If he is found to be 10 percent at fault, he pays 10 percent of the verdict.

7. Writing down license plate numbers for drive-by swooshes can be helpful in identifying aggressive drivers. (Always carry at least a marker with you while cycling.) As a community of cyclists, we are able to better police the streets if someone does plow you over when you are on your bike. If this driver has been reported before for erratic driving around cyclists, it makes the case much easier for you and your cyclist attorney. (There is a guy that rides aroundCharlottewith a video camera mounted on his bike at all times for this reason. Someone is in jail because of his video evidence. Without it, the defendant most likely would have gotten away.) If you are interested in installing a bike camera I recommend you look at getting a cycling camera mount to use with your existing video camera (like a flip) or get a whole new cycling camera system. 

Cycling attorneys can be an enormous benefit to you as a rider and you should be aware that you have that resource at your disposal should you need it. Not only are these great lawyers required when an accident happens, they continue to advocate for cyclists and their rights when it comes to the road.

Please remember to ride safely!

Thanks for reading, Jim

_________________________________

James B. Reed

NY & PA Bicycle Accident Attorney

Ziff Law Firm, LLP

Mailto: jreed@zifflaw.com

Office: (607)733-8866

Toll-Free: 800-ZIFFLAW (943-3529)

Web: www.zifflaw.com

Always preserve your data if you have a bicycle accident on a bike with a GPS-enabled computer.

I have to admit that as a lawyer in Upstate New York, I never expected that I would get a call from a New York Times reporter.

Sure, I have been interviewed many times by local papers and even a few times by national legal papers but I never imagined I would get called by the New York Times. Wow!

Today, I had a great chat with John Markoff, a New York Times Senior Writer, who is writing an article about using GPS data to reconstruct bicycle accidents. John found a post I had done about using the GPS data from a client in one of my bike accident cases to defuse a false insurance company claim that my client was “going like a bat out of hell … at least 30 miles per hour.”

In that case, I was able to produce the GPS data from my client’s Garmin cycling computer, which confirmed my client was only going 18 mph when he was mowed down by the negligent driver. This objective proof helped put the lie to the other driver’s claim and permitted me to obtain a substantial settlement with the driver’s insurance carrier.

Without the GPS data, I would have been left with the old “he said, she said” argument. With the GPS data, I had cold, hard, objective proof of the exact speed my client was riding his bike. That proof can make all the difference in the world when handling bike accident lawsuits.

John and I had a great chat about his own bike accident and how he was able to use his GPS data to recreate exactly how he crashed. John was riding solo when he crashed and had no recall of what caused him to crash because he was knocked unconscious and was taken from the scene by paramedics. He was able to analyze his GPS data to determine exactly where he crashed and was able to identify a pothole he believes caused his crash.

So aside from my own thrill in being interviewed by THE Times, the real takeaway from this discussion is a reminder that if you ever have the misfortune to be involved in a bike accident on a bike that is equipped with a GPS-enabled computer, make sure to safely maintain the GPS data for analysis by your bicycle accident lawyer.

To learn more about the Garmin GPS, click here.

Thanks for reading, Jim

_________________________________

James B. Reed

NY & PA Bicycle Accident Attorney

Ziff Law Firm, LLP

Mailto: jreed@zifflaw.com

Office: (607)733-8866

Toll-Free: 800-ZIFFLAW (943-3529)

Web: www.zifflaw.com

I just read of a great jury verdict on behalf of an injured bicyclist. I am very happy for this bike accident victim because I know all too well the HUGE medical expenses and other financial damage suffered by a badly injured cyclist.

I was also pleased to see that the jury rejected the defense argument that the bicyclist was at fault in causing the collision. I am so sick and tired of the lame “blame the victim” defense that it is gratifying to see juries reject this nonsense.  In this case, the defendant ran a red light AND was speeding and he wants to blame the cyclist?  Yeeesh!

Here’s the full story on the recent verdict:

New York Bicycle Accident Lawsuit Results in $6.125M Verdict

A New York jury has awarded $6 million to a restaurant deliveryman, who was run down on his bike by a rental car.

The personal injury lawsuit was filed in Kings County Brooklyn Supreme Court by Jing Xue Jiang, 26, who was struck on June 4, 2005. The vehicle that struck Jiang was being driven by Jamaal Freeman and was rented from Dollar Rent a Car and Rental Car Finance Corp. The bicycle accident lawsuit named all three as defendants.

According to the complaint, Freeman ran a red light at the intersection of Halsey Street and Lewis Avenue and Brooklyn, striking Jiang while he was on his bicycle. The lawsuit alleged that Freeman was speeding at the time.

Jiang suffered multiple fractures to his vertebrae, left leg, right forearm and also suffered a concussion and subarachnoid hemorrhage. He was hospitalized for 14 days, underwent four weeks of physical therapy and was out of work for six months as a result of his injuries. He allegedly suffers residual impairment of his cognitive functions due to the swelling of the brain caused by the accident.

Defense attorneys admitted that Freeman was negligent, but also argued that Jiang could have avoided the accident and was thus partially responsible.

The jury rejected that argument and found the defendants fully liable for Jiang’s injuries. The jury awarded Jiang $6 million for past, present and future pain and suffering, and $125,000 for future medical expenses.

Thanks, Jim

_________________________________

James B. Reed

NY & PA Injury & Malpractice Lawyer

Ziff Law Firm, LLP

Mailto: jreed@zifflaw.com

Office: (607)733-8866

Toll-Free: 800-ZIFFLAW (943-3529)

Web: www.zifflaw.com

Blogs: NYInjuryLawBlog.com and

NYBikeAccidentBlog.com

As a NY bike accident lawyer, I try to stay informed about bike accident cases throughout New York state. Recently, however, a fatal bicycle accident case right in my own backyard drew a lot of press attention. This fatal accident occurred close by the Ziff Law Firm, in downtown Elmira. I’ve included a link to the WETM-TV video about the sentencing in this case:

Justin Appleby Sentenced to 1 to 3 Years in State Prison

The June 21, 2009, accident was a hit and run. Justin M. Appleby of Elmira was driving his Dodge Durango SUV after 1 a.m. on Grand Central Avenue when he hit 38-year-old bicyclist Michael T. Rautio.

Appleby left the scene of the accident – an act that coupled with the circumstances of the accident itself, has greatly embittered Rautio’s family and many community members against him.

Both Appleby and Rautio had been drinking that night. But only one of them was driving a motor vehicle. After the accident,  Appleby told his wife he had hit a guard rail. He also applied some deer hairs to his vehicle to make it look as though he struck a deer. It appears he was trying to avoid a DWI charge and the consequences of his choice to drive. He did not turn himself in to police until 13 hours later.

All of these details are recounted in a recent Star-Gazette article by Ray Finger, “Elmira man gets 1-3 years in hit-and-run death of bicyclist.” Appleby was sentenced on March 1, 2010, to serve one to three years in state prison for the hit-and-run accident.

The charges against the driver– WHY ONLY LEAVING THE SCENE?

Appleby was charged with Leaving the Scene of an Accident. Why not Vehicular Manslaughter or another charge that reflects the severity of the accident that took Michael Rautio’s life? Why not charge him with DWI?

The answer to that question can be a complex one.  It is the District Attorney’s office, in this case the Chemung County District Attorney’s office, that makes the decision about exactly what crimes will be charged.  They make these decisions after conferring with the police investigators and analyzing all the evidence in the case.  The DA’s office must determine what facts they believe they can PROVE.  As I often say to my client’s:  There can be a HUGE difference between what I think happened, and what I can prove happened. Likewise, the DA’s office must separate all the rumors and speculation from the provable facts.  Once they have done that, they must then decide how those provable facts fit within the definitions of the different possible crimes that they might be able to charge in a particular case.  Every crime requires the proof of certain facts– these are known as the “elements” of the crime.   So after analyzing the facts and the elements, a decision is made about the charges that will be pressed in a particular case.

Let’s use the crime of DWI as an example in this case.  Why was the driver not charged with DWI?  Heck, we know that he was at a bar before the accident so why not charge him with DWI?  DWI requires PROOF that the driver was driving while intoxicated.  Sorry but proving someone was in a bar does NOT prove that he was intoxicated.  It does NOT prove he was intoxicated at the time he was driving.  That sort of proof often comes from a breathalyzer test or blood test administered to the driver shortly after the accident.  Here, the driver did not turn himself in to the police until 13 hours later which is way too late to be able to prove intoxication.

Please don’t get me wrong.  I do not condone what this driver did.  Frankly, I think he’s a piece of garbage to know that he hit someone and left them to die on the side of the road without rendering any sort of aid or assistance. Do I think he was drunk when he ran down this poor bicycle rider?  Yes.  But could I prove it?  No, not based on what I currently know about this case.  Do I think this drunk driver probably avoided a DWI conviction by hiding like a cowardly dog?  Yes.

But with all that said, I do understand why the DA’s office might have made the decision to charge the crime they could PROVE rather than other crimes where they simply didn’t have the kind of information that would have been required to win a conviction.  Unfortunately, lawyers have to make tough decisions about proof all the time…..

The Judge’s sentence

Chemung County Judge Peter Buckley sentenced Appleby to the maximum for the charge against him – one to three years in state prison. Judge Buckley said that “Justice calls out for only one result, which is state prison.” Although it is likely that Rautio died instantly from his severe injuries, the judge also pointed out that to sentence Appleby to less than the maximum would send a message that you can get off lightly for leaving an injured person at an accident. How much worse for Rautio – or any bicycle accident victim – if they are left to suffer without assistance.

Community reaction

In the courtroom, the community, and in online  bicycling forums, many are expressing their feelings that the sentence was too light. In the courtroom before sentencing, Rautio’s mother and sister addressed Appleby, saying how much they hated him for depriving them of a son and brother.

The practical realities of PROVING the crime

It is tragic to the families of accident victims such as Michael Rautio, but the truth is that there a big difference between thinking you know what happened versus being able to PROVE what happened. That burden of proof is an exacting standard for attorneys seeking justice for clients and for the judges upholding the law.

In this case, the accused received the full sentence for the charges law enforcement officials were able to prove against him. To the accident victims family and an angered community, it’s not nearly enough.

Thanks for reading,

RIDE SAFELY!

Jim
_______________________________________
James B. Reed, Esq.
NY & PA Bicycle Accident Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: jreed@zifflaw.com
Web: www.zifflaw.com
Please visit the New York Injury Law Blog at www.NYInjuryLawBlog.com
E-mail me at FreeReports@zifflaw.com for two free books:

NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

As an attorney who handles many bike accident cases every year and is also an avid bicyclist, I have seen a growing hostility toward cyclists from the motorist community in the last few years.

Sometimes I begin to think that my opinion about this is just my imagination, caused by the fact that I ride almost every day and meet with cyclists every day, so I am just exposed to it more than others.

But I just learned of a Facebook FanPage that confirms it is NOT my imagination and that there are MANY, MANY, MANY motorists who are willing to openly declare war on cyclists.

This page is called: “There’s a perfectly good path right next to the road you stupid cyclist!” and it features gems like these:

• “No matter how far to the left you are, you’re taking up my road.”
• “My car is hard, and I am not slowing down!”
• “Cars are hard, cyclists are not.”

Lest you think this is an isolated phenomena, this FanPage has more than 36,000 fans! It’s sickening to me that anyone would become a “fan” of such a demented page.

It’s truly frightening (and sad) that there are more than 36,000 people who are willing to publicly proclaim that cyclists have no right to be on the roads.

Let me be clear: In New York, a bicyclist has a perfect legal right to be on the road. Motorists may not like that fact but that’s the law.

I represent injured cyclists every day and I know first-hand the devastation a car vs. bike collision can cause — death, paralysis, fractures, huge lacerations — are common. I have no hesitation at all to pursue the insurance and every asset of any motorist who disregards New York state law and hits one of my clients.

I truly wish motorists would learn to respect bicyclists rights and treat them with respect. Sad to say, there are many ignorant people who consciously disregard the safety of vulnerable cyclists.

Thanks for reading and RIDE SAFELY,

Jim
_______________________________________
James B. Reed, Esq.
NY & PA Bicycle Accident Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: jreed@zifflaw.com
Web: www.zifflaw.com

Please visit the New York Injury Law Blog at www.NYInjuryLawBlog.com
E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

There is often great confusion about the distinction between civil and criminal law in bicycle accident cases so I wanted to address this issue and hopefully provide some clarification.

To put it simply:

• Criminal cases involve intentional or criminally reckless conduct that violates a particular criminal law.  Crimes are punished by imprisonment, fines or other penalties imposed by law.
• Civil cases involve a failure to use reasonable care that results in injury or damage to another person.  Civil cases involve payment of money to the injured party by the person (or his insurance company) who negligently caused the injury.

As with almost everything in the law, this simple explanation requires more explanation. Please bear with me as I explain the important distinctions with greater detail.

Civil Claims for Injured Bicyclists

As an avid cyclist myself, I know all too well the dangers we bicyclists face due to careless or inattentive drivers.  We all know them: the drivers who are busy talking on their cell phones … adjusting their radios … or simply not watching where they are going.

Unfortunately, those moments of carelessness or inattentiveness by drivers can mean the serious personal injury or even death of a bike rider who has virtually no protection against a huge car or truck.

In those cases of motorist carelessness or inattentiveness (lawyers refer to this as “negligence”) that harm a bicyclist, I am often hired as a New York or Pennsylvania bicycle accident lawyer to pursue a civil claim or lawsuit against the insurance carrier for the driver who hurt or killed the cyclist.

Civil Claims

A civil claim means a claim for compensation (money) to compensate the injured bicyclist for his or her injuries, disability, lost wages, medical expenses, damage to the bicycle or other damages.

A civil claim does NOT involve putting someone in jail, putting them on probation, taking away their driver’s license or forcing them to pay a criminal fine.  Those types of penalties are imposed by our CRIMINAL laws.

Criminal Cases

As noted above, criminal cases involve intentional or criminally reckless conduct that violates a particular criminal law.  Crimes are punished by imprisonment, fines or other penalties imposed by the applicable law.  Each state and or municipality enacts laws that are designed to prohibit behavior that is harmful or dangerous to the public.  Because each state/municipality has its own laws, there is often wide variation between the laws in one state versus the laws in another state.  That’s why you must be very careful in reading legal information on the Internet because a legal discussion that involves the analysis of the law in one state may be totally inaccurate in another state.

Criminal cases are prosecuted by “the State” — that is, the police and the criminal prosecutor’s office — NOT by your own private attorney.  Private, civil attorneys like myself, can certainly confer with the criminal prosecutor (called the District Attorney or “DA” in New York), offer investigative assistance and try to encourage prosecution of particular criminal defendants, but ultimately all strategic decisions are made by the prosecutor’s office.  This can be extremely frustrating to bicyclists and their personal civil attorneys when either the police or the DA decides not to prosecute a motorist’s crime against a bicyclist.  In the event that the prosecutor decides not to press charges, the cyclist’s only remedy is to pursue a civil claim.

Burden of Proof

In all cases, whether civil or criminal, the party bringing the lawsuit (the “plaintiff” in a civil case or the “prosecution” in a criminal case) has what is called the “burden of proof.”  That is the standard of proof that must be proven for the party bringing the lawsuit to win.  At the end of a case, either the judge (if it is a “bench trial” which is a trial to a judge only) or the jury (if it is a jury trial), must deliberate and reach a decision as to whether the plaintiff/prosecution met their burden of proof on every required element of the case.

There is a drastic difference in the burden of proof that is applicable in a criminal versus civil case:

• In a criminal case, the burden of proof is “proof beyond a reasonable doubt.”  This is a very high standard as it means that if a juror has ANY reasonable doubt about the proof of any element of the crime, then they must find that the prosecution has NOT met their burden of proof.  Accordingly, the defendant would be found innocent of the charged crime.
• In a civil case, the burden of proof is “proof by a preponderance of the evidence”.  This is a much lower standard and it means that the plaintiff only needs to offer slightly more evidence than the defense in order to win.  Judges and lawyers often illustrate this burden of proof by asking jurors to imagine the scales of justice and if the scales tip just slightly more to the side of the plaintiff, then the plaintiff has sustained their burden of proving their case by a preponderance of the evidence.

I hope this explanation shines some clarity on the relation between civil and criminal claims.  In many of the bike accident cases I handle there is a close interplay between the criminal and civil cases:

• The motorist who hit my cyclist client is charged with violations of the traffic law and the police and the DA’s office prosecute those violations.  If convicted, the driver can be fined (that money goes to the State, not the injured bicyclist) or ordered to pay restitution (that is money paid by the driver to the bicyclist as ordered by the criminal court).
• I represent the cyclist in a civil claim for their disability from work, their medical bills, the damages to their bicycle, their pain and suffering, etc.

My goal on behalf of my injured bicyclist clients is to make sure that they are FULLY compensated for ALL damages suffered by them.

Thanks for reading and RIDE SAFELY,

Jim
_______________________________________
James B. Reed
New York & Pennsylvania Bicycle Accident Lawyer
Email me:  jreed@zifflaw.com
Call me:  800-ZIFFLAW (943-3529)