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.

True stories, especially cautionary tales, are always more compelling than any fiction. I wanted to share the story of a friend of mine and bike accident victim, Brian Klotz.

In the aftermath of a terrible collision that left him with serious injuries, Brian learned something about auto insurance that EVERY BICYCLIST NEEDS TO KNOW. This is based on the actual experience of someone who is still recovering the ability to walk more than a half mile, who is steadily making gains back to getting through daily life independently.

Brian gave his OK for me to share some information about his case and to follow-up on his comments about SUM coverage and the fact that he unfortunately did not have the maximum amount of recommended coverage. I apologize for the length of this post but as you will read below, this is VERY important information for all cyclists.

As you will recall, a few months ago I posted about the importance of SUM coverage for all bicyclists who also own cars.

SUM stands for Supplemental Uninsured/Underinsured Motorists coverage.

What it means is that if you get hit by a dirtbag (that is a precise legal term) with no insurance or a woodchuck (another legal term) with only minimal insurance (in New York state, the minimum is only $25,000. In Pennsylvania it is only $15,000), you have the right to recover from your own insurance company up to the full amount of your own SUM coverage. In other words, even if the other guy does nothing to protect you, you can protect yourself with SUM coverage.

2 great things about SUM:

SUM covers you (and your family) whether you are injured in your car OR on your bike.

Unlike most insurance coverage, SUM costs very little for all the protection it provides.

I personally recommend that all my cycling friends purchase a minimum of $250,000 of SUM coverage.

Brian has given me permission to share the details of his coverage with all of you because it illustrates in a very dramatic way the harm that befalls you if you don’t have proper SUM coverage.

In Brian’s accident, the 83-year-old driver who rear-ended him only had $25,000 of coverage. Brian did have $100,000 of SUM coverage at least. But he had intended to boost his limits to my recommended amount of $250,000.

Before the accident, when Brian contacted his insurance company (the dreaded gecko — Geico) to boost his limits, they said they would not add the additional coverage.

When an insurance company doesn’t want to sell more insurance, you have to assume that there is a very good reason why …

They didn’t want to increase his limits because they get paid a very small premium for what is potentially a large amount of risk. Well, what is bad for them, is good for you!

But here is the big lesson: Brian decided to wait until March when it was time to renew his policy and then he was going to search for a carrier that would give him $250,000 in SUM coverage (there are LOTS of companies who routinely sell higher SUM coverage). The decision to wait a few months may have cost him $150,000 in insurance coverage which otherwise would have been available! Ouch!

All of my cycling friends, please learn from this hard lesson:

REVIEW YOUR POLICY TODAY TO MAKE SURE YOU HAVE AT LEAST $250,000 OF SUM COVERAGE

(If you are not sure how to read your coverage, just fax me at (607) 398-7947 or e-mail me the couple pages from your policy that list your coverages/premiums, and I will be happy to review them for you at no charge).

IF YOU HAVE LESS THAN $250,000 OF SUM, GET MORE COVERAGE NOW EVEN IF IT MEANS CHANGING INSURANCE CARRIERS.

After more than 23 years of representing injured people, not once have I ever heard anyone regret that they have too much coverage, but I have witnessed first-hand the financial devastation that occurs when people do not have enough coverage.

Better safe than sorry……

Thanks for reading and RIDE SAFELY,

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

The Ithaca Journal recently ran a story, “Friends step in to help injured Ithaca cyclist” about Greg Lourey, a client of mine who was involved in a VERY serious bicycle accident in August.

Greg’s injuries were extensive. As the newspaper reports, he had a fractured pelvis, kneecap, thumb and vertebrae, a concussion, wrist ligaments tears and lacerations. He had to be airlifted to Robert Packer Hospital in Sayre – a $12,000 trip his health insurance is balking at covering.

Greg, who is a great, caring person with a large community of friends, has been through a horrible experience. He was a maintenance mechanic at the Ithaca City School district. The accident happened when he was on his regular morning bike commute to work.

The Journal ran a follow-up story because Greg’s friends recently hosted a benefit for him, to help complete home renovations he has been unable to finish since his accident. (Although the benefit was Jan. 9, the website Gregsbenefit.com is still up. It has information about making donations to Greg and his wife Mary Ellen through their church, the Oasis Christian Fellowship in Ithaca.)

Greg is my client, as I mentioned, and the Journal called me for comment. I told them: “People aren’t really looking for bikes, and the biggest thing that I would like to come out of Greg’s story is that motorists need to be aware that there are more cyclists, and they need to be aware of objects smaller than cars.”

I continued with: “In Ithaca there are a lot of commuter cyclists, and the community is somewhat nervous about the day-to-day safety of riding a bike to work.”

Despite his awful experience, Greg is a brave guy who says he will commute to work on a bike once again some day.

“I’m coming along good and I’m ready to come back,” Greg told the Ithaca Journal. “I just hope people will pay more attention to us bicyclists.”

That’s why I write the NY Bike Accident Blog and advocate for clients such as Greg. I’m an avid bicyclist myself. I believe we need to keep discussing the dangers bicyclists face. And I hope we can find more ways to make bike commuting MUCH safer.

Thanks for reading and RIDE SAFELY,

Jim

P.S.: See my related post about Greg’s accident on my NY Injury Law Blog: Ithaca Car-Bike Collision Puts Bicyclist in Hospital.

_______________________________________
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 a follow-up to my recent post, “New York Bicycle Accident Lawyer Discusses California Car-vs-Bike Road Rage Trial,” I am very pleased to report that the California jury returned a GUILTY verdict on all counts against the doctor who intentionally slammed on his brakes, causing a bicyclist to crash into the back of his car. Here are some excerpts from the excellent VeloNews coverage of the trial:

• A Los Angeles Superior Court jury on Monday found Dr. Christopher Thomas Thompson guilty of assaulting cyclists by abruptly stopping his car in front of them on a hilly Los Angeles County road last year.
• Thompson, a former emergency room doctor, was found guilty of six felonies and one misdemeanor and could face as much as five years in prison. He was remanded and ordered held without bail until sentencing. He was handcuffed in the courtroom after the verdict was read.
• In the July 4 incident, the two cyclists hit the rear of Thompson’s car; one slammed through the rear window, the other catapulted over the car into the road. In the earlier incident, the cyclists said they narrowly avoided hitting the rear of Thompson’s car.

As I said to my bike-riding buddies on our club listserv, “I celebrate this verdict and I hope the judge hangs this driver HIGH when he sentences him.” One of my buddies responded that hanging him high is letting him off too easy — he suggested a more painful sentence which I can’t repeat on this family-friendly blog, but suffice it to say that the cycling community is relieved that justice was served in this case.

Follow the link to the Velo News story, “Dr. Thompson is found guilty of all counts in LA road rage trial”

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: http://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.

It is every bicyclist’s worst nightmare — suffering horrible injuries or death at the hands of a careless driver.

We all know that there are many careless drivers on the road but a recent California case exposes a disturbing danger that is even more horrific to consider than the simple carelessness of a driver — the senseless, cruel and INTENTIONAL injury of a bike rider by a motorist.

Sad to say, but recently I am seeing a HUGE increase in the number of cases of motorists’ road rage against defenseless bicyclists:

• Drivers “brushing back” bicyclists off the road.
• Drivers laying on the horn “buzzing” cyclists.
• Drivers throwing drinks, food and God-knows-what at bike riders.
• Drivers cutting in front of bike riders and slamming on their brakes.

The California Case…

The California motorist-versus-bicyclist road rage case involved an enraged driver who screamed at two bicyclists telling them to “get off the road,” sped in front of the bikes, and then slammed on his brakes causing one of cyclists to crash head-first through the back window of the car.

The driver, ironically a doctor, coolly called 911 and told them that there had been a bike-car accident.  Unbelievably, the doctor minimized the injuries to the horribly injured cyclist, telling the 911 operator who asked if the cyclist’s injuries were serious that “They’ll tell you they are, but they’re not.”

Even more horrific is what the driver admitted about the cause of the accident: “I slammed on my brakes.”  He went on to tell the first police officer who arrived at the scene: “I wanted to teach (the cyclists) a lesson,” and “I’m tired of them.”

In the vast majority of bike accident cases, that would have been the end of it:  the bicyclist would have been carted off to the hospital in an ambulance and the driver would have been told to “be more careful.”

But this case was different.  Thanks to a diligent investigation by the police and a criminal prosecutor’s office that was not afraid to aggressively pursue prosecution of the dangerous driver, formal CRIMINAL charges were filed against the driver.

(For an explanation of the distinction between criminal charges and a CIVIL lawsuit, please check out my post: What is the Difference Between Civil and Criminal Cases in Bicycle Accident Cases? [insert hyperlink])

The officer and local prosecutors charged the driver with a number of serious criminal charges:

• Assault with a deadly weapon,
• Reckless driving causing specified bodily injury,
• Battery with serious bodily injury, and
• Mayhem.

At the time of this post, the jury is out deliberating on the fate of the criminal charges against the driver.  As a cyclist, I am keeping my fingers crossed that the jury sends a loud and clear message to all drivers everywhere:

Bicyclists have a right to use the road and ANY injury to a cyclist will be prosecuted, criminally and civilly, to the fullest extent permitted by the law!

For all the gory details of the California case, you can read the excellent VeloNews coverage in these posts:

• Doctor Charged – http://www.velonews.com/article/80021
• Road Rage Trial Begins – http://www.velonews.com/article/99398
• Defense Attorney Suggests Cyclists Were Looking for a Fight – http://www.velonews.com/article/99475
• “I Wanted to Teach Them a Lesson” – http://www.velonews.com/article/99513
• The Prosecution Rests – http://www.velonews.com/article/99537
• Dr. Thompson Takes the Stand – http://www.velonews.com/article/99644
• Closing Arguments – http://www.velonews.com/article/99685

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)