Tag Archives: Traffic collision

Friendly and Informative Dialogue Explores NY Traffic Laws For Motorists And Bicyclists

Bicycle Sidewalk 2

I recently received an email from a Twin Tiers resident concerned about bicyclists riding on sidewalks and on the wrong side of roadways. I was copied on the email that was sent to his mayor and police chief after the man almost struck a bicyclist riding on a sidewalk.

The man was turning right into a parking lot and a speeding bicyclist, the resident said, was riding on the wrong side of the street in his path to the parking lot. The bicyclist was on the sidewalk and behind a fence, so he was hard to see, the man said. The resident was able to stop before hitting the bicyclist.

The resident stopped by the police department and talked with officers, remarking that he was taught as a child to ride in the road – and ride on the right side of the road, with traffic.

He said two police officers told him that pedestrians (the bicyclist, in this case) always have the right of way, and police have no power to tell bicyclists where to ride on roadways.

ebike signThe man then correctly cited part of NY Vehicle and Traffic Law 1234 (regarding riding on roadways, shoulders, bicycle or in-line skate lanes and bicycle or in-line skate paths): (a) Upon all roadways, any bicycle or in-line skate shall be driven either on a usable bicycle or in-line skate lane or, if a usable bicycle or in-line skate lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic except when preparing for a left turn or when reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge ….

I sent this response to him:

Thanks for including me on your email. I am sorry I have to disagree with your statement “motorists would be blamed in every case of a collision with a bicyclist despite a bicyclist riding unsafely.”

As a lawyer who handles a significant number of bicycle crash lawsuits, I can tell you that the vast majority of time it is the cyclist, not the motorist, who is blamed for causing a collision. I can’t tell you the number of times I have had to prove that an accident report was erroneous in claiming the bicyclist was at fault when in fact the motorist violated the NY Vehicle and Traffic Law.

My feeling is that our laws should be applied equally to ALL users of our roads — motorists, bicyclists, pedestrians. Likewise, proper education is important for ALL users of our roads. Yes, I see bicyclists, pedestrians and motorists sometimes obeying the laws, sometimes violating the law, and accordingly, I think it’s important that we don’t jump to the conclusion that all bicyclists are bad or that all motorists are bad.

James-Reed-Ziff-Law-FirmI appreciate the fact that you are creating a dialogue about proper bicyclist/motorist behavior.  I regularly lecture on NY bike laws to law enforcement, and in fact, I recently lectured to the Steuben County Magistrates Association, where many of the 52 village and town justices in Steuben County were in attendance. If you or anyone in law enforcement ever have questions regarding NY bicycle laws, please let me know and I would be happy to offer my analysis.

Under NY law, you are correct that bicycles are supposed to ride in the same direction as vehicle traffic, not against traffic. And most NY municipalities have laws prohibiting bicyclists from riding on sidewalks if the rider is older than 12 years old.

And finally, although VTL 1234 does say a cyclist should ride to the right of the road when it is safe to do so, a bicyclist IS permitted to use the full travel lane when necessary to ride safely (i.e., when making a left turn or when parked cars, road debris or potholes make the right side of the roadway dangerous).

* * * * *

Fortunately, the police chief responded to the man’s email, too:

“I do not know what officers you talked with or when, but if they told you that bicyclists are somehow immune to the law, they were incorrect.

“You accurately cited one of the sections of the NYVTL that identifies the manner of which bicycles should be ridden.

“In addition to this, there are City Codes that further identify proper bicycle operation and restrictions to riding in certain areas, including the downtown area. Through our School Resource Officer, we try to educate children of their responsibilities when operating bicycles, and offer a program for free helmets for those children in need.

“By your letter, it is not clear to me the age of the bicyclist (child or adult), as this certainly factors into the options that are available to the officers. Regardless, with warmer weather upon us, there will be more cyclists out and about, making it  imperative that persons operating motor vehicles do such with due care and caution.

“I will be talking with my entire staff re an uptick of patrolling safe bicycle operations. If you need anything further, please feel free to call me.”

It’s great to see a police chief admit his officers made a mistake and that he plans to educate his employees and increase enforcement. For our roadways to be safer, everyone has to do their part – motorists, bicyclists, motorcyclists, and pedestrians – and follow the laws. And always be mindful that there will be those who ignore the law.

Thank you for reading!

Jim

James B. Reed
NY & PA Bike Crash Lawyer
Ziff Law Firm, LLP
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Blogs: NYInjuryLawBlog.com and
            NYBikeAccidentBlog.com

 

 

 

 

 

Blog Post Tells Harrowing Tale Of One Rider’s Personal Hell After Collision

 

bicycle-accident-hit

The Cycling In The South Bay blog had a great post recently that captures very well the agony/frustration/despair that often afflicts my clients who have suffered life-changing bike crashes.

The blog post looks at a January 2015 collision Deb Banks suffered when she was run down  by a drunk driver. She suffered multiple serious injuries:  a fractured pelvis, a huge gash on her arm , and most devastating, severe life-changing leg injuries.

Deb has endured five surgeries since then, and is still fighting for recovery every day. The driver was sentenced to nine years in jail. Sadly, Deb will suffer much longer than those nine years as she will have a lifetime of pain and hurdles to overcome on the road to recovery.

To understand all that she has endured, read the blog post here. It’s heartbreaking, and probably hard for many cyclists to read. But you should read it. Now. It could happen to any of us at any time we are riding.

The blog post has a couple important messages for all of us who ride bikes:

  • “First, it’s an explicit command for you to check your auto liability insurance and make sure that you have at least $500,000 in uninsured/underinsured motorist coverage. If your carrier won’t let you insure to that amount, change carriers.”
  • “Second, it’s a commentary on the trajectory of injury. We see Facebook posts of friends in the hospital, or gory aftermath photos, or black-and-white images of pins and bolts drilled into bone, and then we move on to the next item. It’s difficult to comprehend that after we’ve glanced at the photo, the person is still living with the injury, suffering from it, and in some cases is going to be dealing with it the rest of their life.”
  • “Third, this is the story of how one person deals with having her entire life upended as a result of one drunk driver. It’s not an easy story or a saccharine one, and it doesn’t have a happy ending because there is no ‘ending.’ There’s just a story about being in the wrong place at the wrong time, and moving forward with what you’ve got left.”

The blog post writer concludes with some comments worth highlighting here:

  • “The real jail sentence has been the collateral life damage, and it’s something that every injured cyclist knows about intimately.”
  • Deb’s leg injury “requires constant daily care. It hurts all the time. It gets infected. She can’t swim, can’t bike, can barely walk, sleeps with her leg on a foam pad, and can’t sleep under the covers. In other words, her life has completely changed as she’s been thrust into the alt-universe of the catastrophically injured, i.e., those who carry massive disruptions to their daily life and emotional well-being along with the catastrophic physical injuries.”
  • “… If the ankle never mends, life today becomes a template for the rest of life, which means dealing with a leg that is permanently disabled.”
  • “One unexpected benefit to constantly struggling is empathy. Deb now ‘gets it’ in a profound way. However big her challenges are, she understands and empathizes with people who are in even bigger pain, in even more dire straits with no hope, ever, of recovery.”
  • “… She wants to prove that she can come back, that she can do it again, and then maybe she’ll be done with it. It’s occurred to her that cycling for hundreds of miles may not be her thing anymore, but if she does bow out, she’s vowed to do it on her terms, not on the terms of (driver) Gabriel Ray. ‘He doesn’t get to decide how I choose to live my life. He doesn’t.’”

Thanks for reading, and be sure to read the complete blog post!

Jim

James B. Reed
NY & PA Bike Crash Lawyer
Ziff Law Firm, LLP
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Blogs: NYInjuryLawBlog.com and
            NYBikeAccidentBlog.com

 

 

Tragic PA Bicycle Accident Kills 7-Year-Old Troy Boy Riding With Father, Says NY and PA Bicycle Lawyer

My heart goes out to the parents of 7-year-old Haydin Antonio Riggins of Troy, who was struck and killed last week while riding in a bicycle trailer with his sister.  This sad story hits home for many cyclists like myself who remember fondly the days of riding their bikes with their kids in either a cycling trailer or child seat– my three kids each spent many hours in our tow-behind bike trailer and I can only imagine the horror and grief felt by this boy’s father and family……

generic_graphic_crime_accident_cyclist_bike_bicycle_hit_and_run_png_475x310_q85Based upon the news accounts, it sounds like the pickup truck driver who struck the bicycle and trailer failed to yield the right of way to the bicycle that was already within the intersection.

As we have discussed before on this blog, the driver of a vehicle entering an intersection has the legal obligation to yield the right of way to any vehicle (including a bicycle) that is already within that intersection.

In other words, the driver of the pickup truck that struck the bicycle ridden by Haydin’s father Marcell Riggins had a legal duty to yield the right of way to the Riggins bicycle and the driver’s failure to do so is a violation of the law.

According to news reports, a truck driven by David Edwards of Mansfield struck the bicycle shortly after 6 p.m. on Sept. 3 at Elmira Street and Porter Road in Troy, Bradford County.

Police said the impact of the crash threw the father clear of the bicycle but the bicycle trailer with Haydin and his 6-year-old sister, Skylar, was dragged a distance before the pickup truck finally came to a stop.

Haydin was pronounced dead at the scene. Marcell and Skylar were treated at Troy Community Hospital for injuries that were not considered life-threatening, police said.

Edwards and a passenger, Ryan Johnson, also of Mansfield, were not injured.

Per newspaper accounts, the police investigation continues but one has to wonder why at least a Failure to Yield ticket has not been issued to the pickup truck driver.  Hopefully, Haydin’s family is keeping in close contact with the police and the District Attorney’s office to make sure appropriate charges are filed in this tragic collision.

My thoughts and prayers go out to the entire Riggins family……

Jim

James B. Reed
NY & PA Bike Accident Lawyer
Ziff Law Firm, LLP
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Blogs: NYInjuryLawBlog.com and
            NYBikeAccidentBlog.com

 

 

 

 

 

All Bicyclists Should Read My New (And Free!) Monthly Column On Legal Issues Facing Bicyclists

ny-bike-coalition-300x120I am a longtime supporter of the New York Bicycling Coalition, the largest NY bicycle advocacy group. In fact, I am a proud member of its Board of Directors and serve as its Legal Consultant.

And starting this month, I have been asked to co-author a monthly column on the NYBC’s website on legal issues facing bicyclists in New York State. My co-author is another bicycle accident attorney, Daniel Flanzig of Westchester County and New York City. We are both active trial lawyers on behalf of bicyclists in New York State.

Our first collaboration is “A Guide to Understanding Bicycle Damage Claims in NYS.”  Dan did a great job of summarizing what every cyclist should know in trying to get their damaged bike repaired or replaced after a bike collision.

One of the most common calls Daniel and I receive is from bicyclists asking whether they need to hire a lawyer to pursue a property damage claim after they have had their bike damaged or totaled by a motorist.

If the bicyclist was injured, then our law firms can definitely help represent the injured person.

But if the bicyclist was not injured and still wants to file a claim, they can likely do that without the services of a lawyer.

Our first column explains the process and the steps you’ll need to take to protect yourself and successfully be reimbursed for the damages. Please remember that you are entitled to be compensated for the cost of repairs. If the bike cannot be repaired, you are entitled to the replacement value of your bike. Do not let the insurance company convince you that you should settle for a “depreciated” value of your bike.

Also be very careful when talking with an insurance company. Your conversation is usually recorded. The adjuster may be friendly but remember they are not your friend. The innocent statement you make may be detrimental to your claim.

We suggest five basic steps in the column, and you’ll have to read the column to read more about each step, but here are the broad steps you must take to get your claim moving:

1. Get a copy of the police report.

2. Locate the driver’s insurance company on the police report.

3. Take pictures of your damaged bicycle.

4. Get one or more estimates for the repairs.

5. Document other damages that you will claim.

Once you have gathered all of your evidence, it’s time to call the insurance company to file the claim.

But before you do anything, please read the column and contact me if you have any questions.

The column is an invaluable resource for bicyclists in Elmira, Corning, and across the Twin Tiers and New York State.

Thanks for reading, and please take some time to read the full column. Feel free to share your comments below, as always!
Jim

_________________________________

James B. Reed
NY & PA Bike Accident Lawyer
Ziff Law Firm, LLP
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Blogs: NYInjuryLawBlog.com and
            NYBikeAccidentBlog.com

 

 

 

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Hit-And-Run Driver Gets Outrageous Four-Month Jail Sentence, Says NY and PA Bicycle Accident Lawyer

A sentence handed down Thursday in a hit-and-run accident that killed a bicyclist is outrageous.

I was shocked and outraged this morning when I read in the newspaper that a Watkins Glen woman – who struck a bicyclist who later died of his injuries – was sentenced to just four months in jail.

Four months. In a fatal hit-and-run accident!

The Elmira Star-Gazette and The Leader in Corning reported that Melissa E. Smith, 37, was driving south on state Route 414 in the Town of Dix on Oct. 16, 2011, when she struck 35-year-old Michael Delzell of Beaver Dams, who was riding a bicycle north, according to the Schuyler County Sheriff’s Department.

Deputies said Smith got out of her car and saw Delzell’s condition but made no attempt to help him or notify authorities when she went to work at a nearby hospital, according to District Attorney Joseph Fazzary.

Later on Oct. 16, after lying to deputies, Smith admitted she struck Delzell, Fazzary said.

Delzell later died at a Rochester hospital.

Smith pleaded guilty on March 1 to Leaving the Scene of a Personal Injury Accident Which Resulted In Death, a Class D Felony.

Fazzary recommended Smith be sentenced to one to three years in a state prison, but Schuyler County Judge Dennis Morris on Thursday chose the lighter jail sentence and three years of conditional discharge!

The sentence in this case is absolutely obscene. It is unbelievable that this woman, someone who works at a hospital, could get out, NOT render any aid, and then go to work at a hospital without doing anything more to alert anyone to this injured cyclist, and THEN lie to the police

And now she gets a slap on the wrist. This is just shocking.

Unfortunately, shockingly light sentences like this can occur if substantial family/public pressure is not placed on the DA’s office and judge BEFORE a sentence is imposed.  While there are definitely limits to the sentences that can be imposed for certain offenses, generally there is a fairly wide range of discretion available to the judge.

Sadly, if a victim or their family does not forcefully and publicly advocate for a maximum sentence, you often see results like this.

I don’t know the family of this victim and I don’t know whether they lobbied for a maximum sentence, but given the fact that so little publicity was generated about this case while it was pending leads me to assume that there wasn’t much forceful advocacy on their behalf.

For that matter, I don’t know whether they have hired a lawyer to pursue a civil claim (I would hope so), but if I was handling this claim, I sure would have been raising hell before that sentencing.  Of course, as a civil lawyer, I don’t have any official role in the criminal proceedings but I know as a practical matter that there is MUCH that can be done to unofficially influence the process.

The bottom line is:  THE SQUEAKY WHEEL GETS THE GREASE.

And my corollary: AND THE SILENT WHEEL GETS THE SHAFT.

Please be safe out there!

Thanks for reading.

Thanks, Jim.

_________________________________

James B. Reed

NY & PA Bicycle Accident Attorney

Ziff Law Firm, LLP

Mailto: [email protected]

Office: (607)733-8866

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

Web: www.zifflaw.com

Elmira Bicycle Accident Lawyer Discusses Walnut Street Bridge Bike Accident

A cyclist on S Greensboro St in Carrboro, Nort...

My heart goes out to the bicyclist who was involved in the bike/car accident on the Walnut Street Bridge Tuesday in Elmira.

Details of the accident are still very limited, but it appears that this was a very bad accident as the bicyclist, identified only as an adult male, was airlifted from Arnot Ogden Medical Center to Strong Memorial Hospital in Rochester.

At this time, Elmira Police have not released details of exactly how the collision occurred but from the photos and the damage to the bike, it appears that the car ran over the top of the bike.  Needless to say, with so few details it is impossible to know whether this accident was the fault of the bicyclist, the motorist or due to some other factor.  But regardless of fault, it always sad to see that someone got seriously hurt so my hope is that the bicyclist will be OK.

Police told the Star-Gazette and WETM-TV that the driver of the car remained at the scene and is cooperating with the investigation.

Police are asking that anyone who witnessed the accident to call the Traffic Bureau at (607) 737-5640 or the Detective Bureau at (607) 737-5610.

One cautionary note to my bike-riding readers:

I was out riding my bike very shortly after this collision and within a mile of this collision (at the time, I knew nothing about this bike accident). I was riding single file with two other bicyclists and we were to the right very close to the curb. Despite our doing everything possible to not obstruct traffic in any way, an obviously irate SUV driver beeped at us from behind, nearly sideswiped us, and then the driver pulled directly across our path to make a right-hand turn, nearly running us down.

As we all know, many motorists view cyclists as pure annoyances but the rage of many drivers seems to be escalating …. Sooooo, be VERY careful out there folks.  Motorist hostility against bikes seems to be at an all-time high.

Thanks, Jim

_________________________________

James B. Reed

NY & PA Bike Accident Lawyer

Ziff Law Firm, LLP

Mailto: [email protected]

Office: (607)733-8866

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

Web: www.zifflaw.com

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NY Bike Accident Lawyer Explains the Law in Car Vs. Bike Collisions

law-bookI wanted to share with readers a real-life example of the serious issues that arise in the aftermath of a bicycle accident.

I’ve written before about the cyclist I mention in this post. His name is Brian Klotz, and I talked about his accident in the post “SUM Insurance: The Inexpensive and Important Coverage Every Bicyclist Needs to Know About.” Brian was severely injured when he was rear-ended by a pick up truck last year and he’s made some difficult discoveries about insurance and his legal rights as a bicyclist who was struck by a car through no fault of his own.

I have his permission to share some details of his story. Brian and I both think his situation may be instructive for all cyclists who are required to share the road with motorists. In this post, I want to discuss what’s going on with the motorist who struck Brian.

The accident

Brian was out on an endurance ride on Dec. 28, 2009, when he was was rear-ended by, as he puts it an elderly man driving a pickup truck. The collision sent Brian into frozen hay field. He suffered a broken back, a concussion, severe bruising, deep gashes and a badly separated shoulder.

Now the question is what should happen to the driver who struck Brian? What punishment should he have and/or what kind of compensation does he owe to Brian. That’s what this post explores.

The two legal systems

There are two separate legal systems that may be at play in any bike vs. car collision: the criminal law system and the civil law system. Let’s discuss them one at a time.

CRIMINAL LAW SYSTEM

The criminal law system is involved when a person’s conduct violates a written law that prohibits a certain type of behavior: You cannot shoot your annoying neighbor, you cannot steal from the store, you cannot drive 100mph. Criminal laws include felonies (the worst crimes), misdemeanors (lower level crimes) and violations (the lowest level).

Included under the umbrella of criminal laws, are laws (usually violations) that control the behavior of drivers, cyclists, pedestrians, motorcycles, etc. The criminal law system is the domain of the police, the prosecutors and the court. As a civil lawyer, I play no formal or official role in the criminal system (although behind the scenes, I do strongly urge aggressive prosecution of violators of the law).

In Brian’s case, the driver who rear-ended him with was charged with violating Section 1146 of the Vehicle and Traffic Law of the State of NY which provides: Drivers to exercise due care. Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist…”

The driver in Brian’s case pled guilty to that charge and was fined $185.

I am sure I speak for all cyclists when I say that $185 seems a pittance for a person to pay for wrecking a cyclist, destroying his bike, breaking his back, etc. but quite frankly that very typical of the very small financial penalty imposed by the criminal court system in the typical bike vs car collision.

Restitution (a court order directing a defendant to compensate a victim for their financial losses) can be ordered by the criminal court but in the vast majority of the cases, the court does not order restitution and even when it does order restitution, restitution does not include compensation for pain and suffering or disability.

Thankfully, the criminal law system is not the end of the road for either the driver or the injured cyclist, as there is also our civil law system.

CIVIL LAW SYSTEM

Under our civil law system, a person who carelessly or recklessly injures another may be required to compensate the injured party for the full extent of the damages suffered by that person.

I represent injured cyclists like Brian under this civil law system. My job is to investigate the collision and preserve as much evidence as possible so I will be able to prove at trial that the accident was caused by the carelessness of the driver. Having handled bike cases over the last 24 years I know that the lawyers for the motorists always claims that the cyclist was at fault so I need all the ammunition necessary to blow away this nonsense defense.

My job is also to identify all applicable policies of insurance (no-fault, liability, health, under-insured motorist’s coverage, etc) to ensure that if I am successful in getting a large judgment against the driver, that I will be able to successfully recover that judgment from an insurance carrier.

Finally, it is my job to make sure that my client’s medical bills and lost wages are being paid by the appropriate insurance carrier. I can’t begin to tell you how much time I spend fighting with insurance companies to force them to pay what they should be paying but they are dragging their feet or offering some nonsense reason why they do not think they have to pay…..

In Brian’s case, the elderly driver only had the bare minimum of insurance required by NY law– $25,000. As anyone who has paid for any hospital visit knows, $25,000 goes nowhere these days. Luckily, Brian had the foresight to purchase SUM insurance as part of his insurance on his car.

As I have urged before, I believe SUM is the most important coverage EVERY cyclist should have on their auto policy. You can read more about SUM in my NY Bike Accident Blog post, “SUM Insurance: The Inexpensive Coverage Every Bicyclist Must Get.” Basically it provides additional insurance coverage from your own insurance company when the other person’s insurance coverage is insufficient to compensate you for your damages. SUM coverage is cheap and to put it most bluntly, I think any cyclist who is already paying a lot of money for car insurance would be nuts to not have at least $250,000 of SUM coverage.

At this point in Brian’s case, we have fully investigated the collision and preserved all evidence. We have ensured that his medical bills and lost wages have been paid. At this point we are unable to wrap up Brian’s case because unfortunately he still needs an additional surgery on his shoulder to be performed this fall.

It is my practice to hold off on settling any claim until my client’s medical condition has stabilized because once you settle a claim, it is over forever and therefore you want to make sure things are as stable as possible before settling. Accordingly, we are just awaiting the outcome of Brian’s surgery before entering in to the final negotiations with the insurance carriers.

I hope all of this lets folks have a better understanding of how this all works. Feel free to let me know if you have any questions.

Thanks for reading and RIDE SAFELY,

Jim

_________________________________

James B. Reed
NY & PA Bicycle Accident Lawyer
Ziff Law Firm, LLP
Mailto: [email protected]
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com

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NY Bicycle Accident Lawyer Explains Need for Police Cooperation

small-bike-big-truckI recently blogged about a troubling issue for many bicyclists: What can be done about pushy, aggressive drivers?

The post, “Careless Drivers Pose an Ongoing Danger, Worries Avid Cyclist” concerned Donal Fitterer, a rider connected to the Finger Lakes Cycling Club in Ithaca, and a bad experience he had with a truck.

That post inspired this response from a NY Bike Accident Blog reader:

“A comment/question about Don Fitterer’s incident with a truck pushing him off the road: Something similar happened to me 2 years ago when a Cornell University cop in a police car(!) tried to nudge me over because he thought I wasn’t riding far enough to the right.

Isn’t this grounds for a misdemeanor charge of reckless endangerment?

According to NYS Penal Code S. 120.20, reckless endangerment occurs when a person “engages in conduct which creates a substantial risk of serious physical injury to another person.” No actual injury need occur; it’s the creation of a fear of injury in the mind of the victim that matters.”

My response to that question:

The short answer is Yes, arguably conduct of this nature could constitute grounds for Reckless Endangerment. The practical problem is whether you can convince a police officer to ticket the driver and then the prosecutor to aggressively prosecute the charge.

Sadly, all too often, police are deaf to cyclist’s complaints regarding unsafe motorists. In their defense, sometimes this unwillingness is based upon their prior bad experience with cyclists who screamed about dangerous motorists but then didn’t have sufficient information to permit an effective prosecution (namely the license plate of the car and a decent description of the driver).

The key for us as cyclists is to diplomatically approach the police and provide them with all the info they need to do their job. If we do that and we still get a deaf ear, it is time to go to that officer’s supervisor or even to the chief of police. I have had good luck with this strategy in Elmira and Chemung County but it has taken me a long time to develop the kind of relationship necessary that they take me seriouslly.

I think it is imperative that local cyclists start to educate and forge relationships with the local law enforcement community if we hope to have their assistance.

I hope this helps.

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

A comment/question about Don Fitterer’s incident with a truck pushing him off the road: Something similar happened to me 2 yrs ago when a Cornell Univ. cop in a police car(!) tried to nudge me over because he thought I wasn’t riding far enough to the right.

Isn’t this grounds for a misdemeanor charge of reckless endangerment?
According to NYS Penal Code S. 120.20, reckless endangerment occurs when a person “engages in conduct which creates a substantial risk of
serious physical injury to another person.” No actual injury need occur; it’s the creation of a fear of injury in the mind of the victim that matters.

NY Bicycle Accident Lawyer Explains How to Protect Yourself in a “Dooring” Claim

A-Philly-bike-laneI recently had a letter from a young cyclist seeking my advice after a “dooring” incident. Through no fault of her own, she was struck by a car door while on her bicycle. She decided not to press charges or seek medical attention and now the car owner’s insurance company wants her to pay for damage to the car door that struck her. Seems outrageous, doesn’t it!?! I wanted to share her letter here, along with my reply about this unfortunate situation:

Dear Jim,

On February 5, I was involved in a “dooring” accident on my bike. I filed a police report, but then I decided that I wouldn’t press charges because it wasn’t worth the hassle. Today (March 27), I received a letter in the mail from the insurance company of the car’s owner (who was not the driver who caused the accident) that I am expected to pay $500 to cover the deductible for damages to the vehicle.

This is a sum up of the accident:

I turned left at a green light onto a main arterial in Philly. A Mercedes was double parked over the bike lane, and someone was loading things into the trunk of the car, also standing in the bike lane. My boyfriend passed the car on the left on his bike first, and then as I passed the car on the left, a man in the driver’s side opened the door. I struck the outer edge of the door frame with my bike and fell into the street. My front wheel is damaged, and I had such extensive bruising and muscle pain in my right arm that I had to miss two days of work (I stock at a grocery store and model). We filed a police report, and I took pictures of my bruise in case I needed anything, but I don’t have health insurance, so I refused transport to a hospital.

Now I’m expected to pay $500 in damages for the door of the car that hit me? It says that it seems I was in the wrong, which makes no sense to me.

I need some help. Is there anything you can do or advice you can give me before I call the insurance company?

Thanks in advance – R.

And here is my response:

All I can say is “that stinks.”  Actually my words were much stronger than that but I didn’t want to offend you!  J

The bottom line is that I think it was a mistake to NOT press charges because those charges would have been the leverage you need to nip this nonsense in the bud.  I don’t tell you this to make you feel bad—I only mention it for future reference.  Pressing charges IS a hassle but at least doing so helps to demonstrate that it was the other party, not you, who was at fault.

So, let’s forget the past and talk about what you can do now…..   You should go talk to the insurance company and explain in detail exactly what you have told me.  Tell them that you have no intention of paying their insured’s deductible because the accident was their insured’s fault, NOT yours.

Tell them that in the event they pursue this any further, we will bring a counter-claim for your personal injuries and damages (in PA, you have a two-year time limit for pursuing an injury claim).

This should be enough to make them go away.  If they persist, just keep telling them that you will not voluntarily pay them a single penny and if they expect to get a penny they will just have to sue you.  Ninety-nine percent of the time they will not risk taking any further legal action against you…..

Sorry about your difficulties but I hope this basic advice helps.

I hope my advice to R. helps other readers out there as well. 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: [email protected]
Web: www.zifflaw.com

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


NY Bike Accident Attorney Looks at Sentencing of Elmira Hit-And-Run Driver

court-sentenceAs 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: [email protected]
Web: www.zifflaw.com
Please visit the New York Injury Law Blog at www.NYInjuryLawBlog.com
E-mail me at [email protected] for two free books:

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

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