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.

I have a true story to share about the serious consequences of NOT having the correct car insurance. The cautionary tale I have to tell  happened to a local person, a client of mine who gave me the go-ahead to share his name and story.

I have blogged before and even written a book about the vital supplemental coverage your car insurance provider may be unwilling to tell you about. The most important insurance you can buy – and I bet you don’t have it – is SUM: Supplemental Uninsured/ Underinsured Motorists coverage.

What is SUM and why would an insurance company be reluctant to sell it to you? (It goes against common experience, right!?)

SUM provides coverage from YOUR insurance company to protect YOU if the other driver’s policy does not adequately cover your damages.

Insurance companies are reluctant to push SUM coverage because it offers a lot of coverage for low premiums – making it a smart buy for consumers and a losing proposition for insurance companies.

One accident victim’s story

New York state law requires all drivers to carry liability insurance.  But the minimum coverage is $50,000 – a drop in the bucket if you have serious injuries and lose time from work.

My client, Peter Schrempf of Ithaca, kindly gave his consent for me to share his story on the NY Injury Law Blog, in the hopes that his experience could forewarn others.

Peter was run down while riding his bicycle. He was struck by a pickup that stopped at a stop sign on a side road, but then continued on. The driver claimed that he never saw Peter.

Peter suffered massive injuries from the collision. Unfortunately, the driver of the pickup truck only had $50,000 of liability coverage. That is the minimum required by New York state law.

Peter also only had $50,000 of SUM coverage from his own insurance carrier. This means that, bottom line, the most Peter could receive in compensation for his debilitating injuries is $50,000.

I wrote a whole book on the topic of protecting your family with the proper auto insurance, “Learn the Five Secrets to Buying Auto Insurance in NY.” It was based on what I found,  in more than 20 years as a personal injury lawyer, to be the biggest return on investment for car insurance protection you can buy. In an appendix to the book, I even explain the cost comparisons for increasing your SUM coverage.

I have also written before on the NY Injury Law Blog regarding SUM coverage, in the post “Too Many Drivers Light on Insurance Coverage, Elmira Accident Attorney Warns” in particular. In addition, the Ziff Law Firm has an FAQ about car crashes and auto insurance.

If Peter had my recommended minimum SUM coverage of $250,000 on his own car, he could have received an additional $200,000 from his own insurance company. All of this additional coverage for what would have been less than $10/month in additional premiums.

It is sad to say, but the value and availability of SUM coverage is NOT common knowledge. That is why I try to share information about this important coverage out every chance I get and through different means – from my book, to my firm’s web site and by blogging. Please learn something from Peter’s experience and my knowledge of New York state car insurance coverage laws – don’t delay in asking your insurance provider about your SUM options.

Thanks for reading,
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 general law in New York state is that the only bicycle riders required to wear a bicycle helmet are those 14 years old or younger.

However, there is nothing prohibiting a municipality or county from imposing greater safety protections than the state law. I was very pleased to learn that Rockland County, N.Y., imposes an obligation for ALL BICYCLE RIDERS TO WEAR A HELMET!

As a lawyer having handled many bicycle accident cases, I can tell you that a helmet is the single most important thing you can do to protect yourself in a bike vs. car collision. That’s why I preach to my kids and all my riding buddies: NEVER ride without a helmet.

Here’s the Rockland County law requiring all bicyclists to wear helmets:

§ 217-2. Helmet and child seat requirements.

No person shall operate a bicycle or ride as a passenger on bicycle unless:

A. Such operator or passenger is wearing a helmet meeting the standards of the American National Standards Institute (Ansi Z 90.4 bicycle helmet standards) or the Snell Memorial Foundation’s 1984 Standard for Protective Headgear for Use in Bicycling. For the purposes of this section, “wearing a helmet,” means having a helmet of good fit fastened securely upon the head with the helmet straps; and

B. For passengers 1 or more years of age and less than 5 years of age, such passenger is also placed in a separate seat attached to the bicycle and such seat shall have adequate provision for retaining the passenger in place and for protecting the passenger from the moving parts of the bicycle.

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

As a cyclist (and a bicycle accident lawyer!) I am vehemently opposed to rumble strips, which are very hazardous to cyclists. Cyclists are endangered if they try to ride over the bumpy surface. They are also put at risk if they try to ride around the rumble strips.

The New York State Department of Transportation is proposing ADDING rumble strips to new and existing two-lane secondary roads. I was alerted to this situation by a e-mail from the New York Bicycling Coalition.

Rumble strips are commonplace on major highways across the nation. This proposed change in the road engineering guidelines for New York state is a variance in the common standards for road construction!

Rumble strips are a lose/lose proposition for cyclists and I therefore urge all cyclists to send an E-mail to NYSDOT (see below) and to your local legislators ASAP urging the Department of Transportation to reconsider this dangerous plan:

Click here to e-mail NYSDOT

Online petition

I’ve discovered an online petition opposing the policy of placing rumble strips on secondary highways in New York State. It also urges NYS DOT to work with local cycling clubs in the state to find a policy that is supportive of cyclists’ needs.

If you sign it, I encourage you to also offer in the comments section any experiences you have had regarding encounters with rumble strips.

New York’s Southern Tier/Finger Lakes lawmakers

For your convenience, I have also listed below the contact information for a number of the local legislators in my immediate area. E-mail or write to urge them to squash this proposed policy change.

State Senators

(42nd District) John J. Bonacic: www.nyssenate42.com

(49th District) David J. Valesky: www.nyssenate49.com

(50th District) John A. DeFrancisco: www.nyssenate50.com

(51st District) James L. Seward: www.nyssenate51.com

(52nd District) Thomas W. Libous: www.nyssenate52.com

(53rd District – Elmira’s district) George H. Winner, Jr.: www.nyssenate53.com

(54th District) Michael F. Nozzolio: www.nyssenate54.com

(57th District) Catherine M. Young: www.nyssenate57.com

Regional Assemblymembers

107th District Assemblymember: Clifford W. Crouch, Room 545, Legislative Office Building, Albany, NY 12248.

111th District: Bill Magee, 214 Farrier Ave., Oneida, NY 13421.

123rd District: Gary D. Finch, Room 718, Legislative Office Building, Albany, NY 12248.

124th District: William A. Barclay, 200 N. Second St., Fulton, NY 13069.

125th District: Barbara S. Lifton, 106 E. Court St., Ithaca, NY 14850.

126th District: Donna A. Lupardo, 44 Hawley St.- 17th Floor, State Office Building, Binghamton, NY 13901-4416.

127th District: Peter D. Lopez, New York State Assembly, Legislative Office Building, Albany, NY 12248.

129th District: Brian M. Kolb, 607 W. Washington – Suite 2, Geneva, NY 14456.

130th District: Joe Errigo, 3045 E. Henrietta Road, Henrietta, NY 14467.

136th District: James G. Bacalles, 103 Gansevoort St., Bath, NY 14810.

137th District: Tom O’Mara, Tom O’Mara, 333 E. Water St. – Suite 3, Elmira, NY 14901.

147th District: Daniel J. Burling, 2371 N. Main St., Warsaw, NY 14569.

149th District: Joseph M. Giglio, Legislative Office Building, Albany, NY 12248.

Bicycling is great exercise, a “green” practice, and a tourism draw for New York State. Why jeopardize a good thing with rumble strips on secondary roads?

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

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)