Ride on for Red Nose Day: east coast recap

Better late than never, I always say ;)  A few weeks after the west coast trip, we embarked on round two: Boston to NYC (the long way).  The days were a bit bigger in terms of mileage on this trip, and we encountered some rain and chilly temps on day 2.  But it was gorgeous out on the east coast, and we had the honor of closing NASDAQ and celebrating with the folks at Red Nose Day/ Comic Relief/ NBC as Red Nose Day was celebrated nationwide on May 25th!  

Read here to learn more about the impact of Red Nose Day ...  it's powerful, and compelling.  

Riding bikes to raise money for these efforts was REALLY meaningful and fulfilling for all of us.  

Once again - I defer to the incredible videos produced during our ride, as well as the images taken by Meg McMahon, to tell the best story: 

NASDAQ featured our appearance on their TWITTER feed-  so awesome! 

The Bike of Belgium

A guest post, by Justin Balog: 

I arrived in Ghent Belgium with my bike packed in its travel case, and grabbed a taxi at the train station. While making small talk with the driver, I learned that the local government recently voted to keep the interior of the town free of cars, making the historic cobbled streets of Ghent only accessible to pedestrians and bikes.  

It is a town where commuting is a necessary way of life. After chatting with locals and talking to them about their bikes, I found it is not only necessary, but commuting is the preferred way of life.

Most Belgians have had their commuter bikes for years. Heck, Eddy (72) who I met over a beer, said he's been riding the same bike for 43 years.

Needless to say, then, I spent much of my time wandering the ancient streets of this historic city, documenting these fabled machines. 

Driver Caught on Dash Cam Gets Deal, "Because Cyclist Was Riding in CrossWalk"

On Saturday, October 15, 2016, at 5:31pm, K.B. and her fiancé were riding bikes in Littleton, near Bowles on the bike path, when they entered a crosswalk.  K.B.’s fiance's bike had a Burly attached, in which their 2-year old child was riding.  K.B. was just behind, following her fiancé and their child in the crosswalk, on a green light/walking signal, with ample crossing time remaining on the digital signal.  Without warning, K.B. was hit by a car. 

The car was in the left-hand turn lane, with a green light.  When it was clear, it accelerated into the crosswalk and t-boned K.B. on her bike.  Notably in this case, another car that sat in the turn lane had its dash cam running, capturing the entire event.  You can hear that driver anticipate what’s about to happen – yet, for some reason the turning motorist never noticed K.B. or her family on their bikes, until it was too late. 

Dash cam footage (forward to 3min in...warning- it's not easy to warch this): 

The motorist was cited by Littleton P.D. for failure to yield right-of-way to pedestrian under violation code 802(1), which is a Class A Traffic Infraction.  A summons was issued for the driver to appear in Littleton Municipal Court.  We contacted the City Attorney (CA) ahead of time and implored her not to offer a plea deal in this case.   Her proposal was to drop the charge to a defective vehicle charge.  We asked that she not do that, given the factual situation, the video showing clear negligence (and failure to yield) by the motorist, the injuries K.B. suffered, and the very real fact that one or two seconds earlier, the car would’ve hit the Burly with the child instead. 

Communication quickly broke down with the City Attorney, who insisted this is how her office “always handles cases like this.”  I informed her that I would be sure to notify the cycling community that this is Littleton's approach to these cycling crashes.  (i.e., this blog, and honorable mention in my cycling education classes).  The City Attorney then spoke with my client directly and criticized my professionalism.  (Yes, you read that right).  We appeared several times in Court; on one occasion appearing, only to learn the case had been rescheduled and no one had bothered to tell us:

Instagram Venting.

Instagram Venting.

Keep in mind K.B. is the victim here.  Yet, she began to feel as though she was the accused, by the way she and her case were being handled.  Curiously, the City Attorney wanted nothing to do with the dash cam footage – although this would have made her case very easy to prove to a jury, she minimized its importance.  She brushed it aside.

At the eventual sentencing hearing for the driver (mid-February!), we learned that in fact, yes, the City Attorney HAD offered the driver a lesser charge in exchange for the plea.  K.B. and I were not informed of this, despite our asking the CA repeatedly what her plan was, and despite our requests that she not reduce the charges, and if necessary, take this case to trial.  (While not technically a Victim Rights Case, DAs and CAs typically involve my clients / my office in these decisions given the severity of the injuries).  At the hearing, the Judge asked to see the dash cam footage and did review it several times on K.B.’s phone.  He seemed apologetic in light of its clear showing of failure to yield to pedestrians/cyclists in the crosswalk, but his hands were tied with this minimal charge/plea agreement.  (We were seeking community service as part of the sentence of the driver-the Judge declined to order it based on the plea agreement reached between the driver and the CA).  The CA then began criticizing K.B. for riding in the crosswalk.  Suddenly she, as the City Attorney, who is tasked with pursuing charges written by law enforcement – argued that the victim of this collision was riding illegally in the crosswalk.  It begs the question: Is this how Littleton feels about its cyclists?   

Let's address the CA's statements to the Court, shall we?  Her representation of the law to the Judge is simply incorrect. 

First- C.R.S. 42-4-1412, does NOT prohibit sidewalk or crosswalk riding, nor does it require dismounting at crosswalks.  The State Law indicates that these behaviors are prohibited/required only where required by local ordinance (i.e. city ordinance) or traffic device (i.e. signage).  In pertinent part, the statute reads,

(10)(a) A person riding a bicycle or electrical assisted bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall yield the right-of-way to any pedestrian and shall give an audible signal before overtaking and passing such pedestrian. A person riding a bicycle in a crosswalk shall do so in a manner that is safe for pedestrians.

(b) A person shall not ride a bicycle or electrical assisted bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk where such use of bicycles or electrical assisted bicycles is prohibited by official traffic control devices or local ordinances. A person riding a bicycle or electrical assisted bicycle shall dismount before entering any crosswalk where required by official traffic control devices or local ordinances.

(c) A person riding or walking a bicycle or electrical assisted bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk shall have all the rights and duties applicable to a pedestrian under the same circumstances, including, but not limited to, the rights and duties granted and required by section 42-4-802.

 So –let’s investigate whether the City of Littleton in fact has an ordinance that requires cyclists to dismount?  (Answer: no). The City has adopted the Model Traffic Code.  You can review this on our website here.  The only new/additional sections added by the Littleton City Council to their ordinances, beyond the Model Traffic Code, are posted here.  Of note, one of the ONLY additions concerning bikes in their code, is the one that addresses BIKEWAYS:

9-1-7: BIKEWAYS:

(A) Bikeways Created: Public streets and rights of way or portions thereof may be designated as bikeways. When marked by paint striping, reflective buttons, no parking signs, bikeway signs, or other traffic devices or signs, the portions so marked shall not be used for driving, parking, stopping, standing or turning of motorized vehicles of any kind; and bicycles operated on said streets shall be operated only within the bikeway portions so designated. The City administration shall determine the location of bikeways and the appropriate type of marking on each street or right of way based upon good traffic engineering practice. (Ord. 13, Series of 1985)

(B) Operation Of Motor Vehicles When Necessary To Cross Bikeways: It is recognized that upon occasion such as making of right turn movements, entering driveways and the like, it will be necessary for operators of motor vehicles to drive across designated bikeways, but in such instances the required movements shall be made by the operator of the motor vehicle remaining in the bikeway for as short a distance as possible, and he shall enter the bikeway only after taking due care to ascertain that his movement will not endanger bicycles being operated therein. (1971 Code, sec. 15.21)

In sum, I’m left scratching my head trying to figure out why this City Attorney believed that my client (a) should not have been riding in a crosswalk (which comes off a bike path and re-enters a bike path), and (b) should have dismounted and walked her bike across the crosswalk. 

And in short, this means those “mitigating factors” the CA argued to the Court, were misrepresentations of both State and City law, to the detriment of my client and her case.

My client stood in that courtroom, mouth agape - having been hit by a car while riding legally - she was now being accused of bringing the collision on herself by riding in a crosswalk in broad daylight with her family.  She was on the defensive, having to explain her behavior that day. 

Result: charge ultimately entered: “unsafe vehicle.”  Fines: $391.75.  Our request for community service was denied, based on the plea agreement reached.  However, the judge did order the driver to attend a defense driving school course. 

K.B. spent the time and energy to attend a handful of court settings in this matter from October through February.  She left this process with a very bad taste in her mouth for how it was handled (as you can probably imagine).  You can review/view the entire sentencing hearing here: 

Drunk Driver Hits Cyclist From Behind, Flees Scene - Insurer Asserts Comparative Negligence Defense

On June 9, 2015, Brandon was out for a bike ride.  Having recently moved to Colorado, this was one of his first few rides in the Littleton area.  It was just before 6pm, and he was on his way back home. 

Without warning, Brandon was hit from behind by a motorist, and thrown off his bike into the street. His head, face, hands and knees were bleeding badly.  Despite his obvious injuries, the motorist fled the scene.  Brandon recalls none of this- as his next/first memory was waking up in the emergency room, where he’d been transported by ambulance.

Luckily, a passerby witnessed the event and caught the license plate number of the fleeing motorist.  Police were called and located the driver in her home about an hour after the collision.  She was drinking Schnapps...  The officers conducted a Blood Alcohol Test (BAC). 

We later learned that the motorist worked for police and fire dispatch.  It is believed she thought that if she began drinking at home, perhaps the BAC could not conclusively prove she had been drinking at the time of the crash.  However, when results came back showing her BAC was .317, her theory fell apart.  This level of intoxication meant that she either drank to near-deathly levels in that one hour, or more realistically, she had been drinking before the crash, was intoxicated at the time she hit Brandon, and then continued drinking once home. 

Hit a human.  Leave.  Run home and start slamming shots?  Say what?

The driver was cited with numerous violations.  During the pendency of her criminal case, we learned that her versions of what happened varied drastically;  from, “I thought I hit a pothole,” to “A cyclist darted in front of my car,” to “The Arby’s fell off my passenger seat onto the floor and I reached down to pick it up.” Suffice it to say, these explanations all fell short of accepting responsibility.

Meanwhile, Brandon had hired our office to represent him, and we had begun the process of pursuing the motorist’s insurance – State Farm (SF)–for his injuries and claims.  As in our last blog post, SF’s initial settlement offer was grossly inadequate in light of his injuries, as well as in light of their insured’s/the motorist’s conduct.  At our urging they increased their offers, minimally, $5000 at a time, though ultimately still way outside the realm of possible settlement value.  This, despite their insured’s guilty plea in the traffic/criminal case...  SF seemed to think that they did not owe my client adequate compensation. So, we filed suit.   

In Colorado, when someone commits negligence, but also does so with exacerbating factors, (or what we like to call, willful and wanton conduct), a Plaintiff is permitted to seek leave from the Court to add an additional claim for punitive damages (C.R.S. 13-1-102).  Punitive damages are not based on any damages or claims that the Plaintiff incurred – they are solely intended to punish someone for their misconduct.  A jury may award any amount it chooses for punitive damages – it is solely intended to punish someone with a large monetary verdict.  In Colorado, insurers don’t eventually pay a punitive jury award – the actual wrongdoer does.  Here, our plan was to amend our Complaint to add a claim for punitives, to allow the jury to punish the driver for her conduct with – we hoped – a large monetary sanction. 

However, before we got to this juncture, we noted the content of the Answer filed by State Farm’s defense counsel.  In it, State Farm, on behalf of its insured/at-fault driver, asserted some curious affirmative defenses, including one that claimed Brandon contributed to the collision:

"The proximate cause of Plaintiff's claimed damages and/or injuries, if any, may have been Plaintiff's comparative negligence, which conduct either bars or reduces Plaintiff's recovery, if any, in accordance with Colorado's Comparative Negligence Statute.  C.R.S. 13-21-111 (2015)." 

SF also claimed that it must’ve been someone else that caused Brandon's injuries and damages:

“The proximate cause of Plaintiff’s claimed damages and/or injuries, if any, may have been the act or omissions of a third party or parties whom Defendant has no control, to whom Defendant has no relationship, and for whom Defendant is not legally responsible.”

Interesting.  

Now in the practice of defending law suits, it is fairly common for the Defendant’s Answer to contain some boilerplate language, as well as boilerplate affirmative defenses.  However, under the Colorado Rules of Civil Procedure, "The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."  (C.R.C.P. Rule 11(a)).

Keep in mind that by the time the Answer was filed, the motorist had pled guilty in the criminal case to charges resulting from her careless driving causing injury, her fleeing the scene, and her driving while intoxicated.  While the burdens of proof are different in the criminal and the civil cases, and her plea of guilty in the criminal case would not per se be admissible in Brandon's civil case, her attorneys knew that she had confessed to her actions.  They knew, because we’d provided them the transcript of her sentencing hearing... Where I was present, as was Brandon and his wife and their young son. 

Imagine our surprise then, to see SF take this approach in litigation.  We could not wait to see what they claimed Brandon did, to contribute to him being hit from behind by their drunk driver!  We found this conduct very curious – that the defendant and her counsel would deny her responsibility and negligence, in this pleading filed with the Court.  We wanted very much for the jury in this case to hear about her denials and to compare that to the testimony of the bystander who witnessed the collision, and the testimony of the law enforcement officers who visited her home shortly after.  We wanted the jury to compare her denials of fault with her legally-documented intoxication.  What a trial this would be! 

SF counsel by filing such an Answer, had placed its insured in a very precarious position: punitive damages would not be paid by SF, nor could their insured discharge them in bankruptcy.  If we went to trial and got a large punitive award, this Judgment would follow (and likely financially cripple) the driver for life.  And Jeffco juries are known to punish people who do things like this with large punitive verdicts.  Imagine the jurors' response to hearing that the Answer and legal position adopted by the driver and her counsel, was that Brandon had done something to contribute to this collision!  SF had exposed its insured to this very real possibility, with the Answer it filed.  It made statements in the Answer that arguably violated Colorado Rules regarding pleadings and implicated sanctions. 

We pointed out this interesting scenario to the lawyers at SF.  The case settled shortly thereafter, for the amount we demanded pre-suit.

Boilerplate language in a Defendant’s Answer given these facts, was a game changer.  Moral of the story: while multi-billion dollar insurance companies may have large, well-staffed law firms and attorneys at their disposal, failure to pay attention to the actual issues can be devastating.  This is why our firm controls (carefully!) our caseload, and this is why we read Answers and affirmative defenses carefully, and show up at sentencing hearings.  Bottom line: we won’t allow our injured clients to be bullied.  To have a driver drink, hit a cyclist from behind and flee the scene, and then to have the audacity to respond in an Answer that he was in ANY WAY at fault or a contributing factor, is offensive. Sometimes a case resembles a really hard bike ride: It's a slog to the top of the climb, but hanging in there, and continuing to work hard, does pay off.  Once again we had a tenacious client, who was not desperate to settle, and who was game to take this case all the way to trial. It takes courage and fortitude- as I've discussed in previous blog posts.  

Now, what about that driver?  What happened to her?  The day of her sentencing hearing in Judge Enquist’s courtroom (Jeffco) was the Monday following a Friday hearing, in which a young man who’d been drinking, drove up Lookout Mountain on the wrong side of the road and caused cyclist Tom Flanigan’s death.  There, Judge Enquist had sentenced the driver to the max allowed under the terms of his plea: 10 years in the Department of Corrections (DOC).  Now, 3 days later, Judge Enquist was again hearing facts of a drunk driver hitting a cyclist.  She was beyond furious.  Under the terms of the plea reached with the District Attorney’s office, the Judge sentenced this driver to six years - the max she could order under the plea.  Counsel for the Defendant asked for a stay of execution (a few days’ time) so that the driver could get her affairs in order.  The Judge said no – she was remanded immediately and began serving her sentence that day.  Of the 6 year sentence, she will likely only serve 12-15 months total. 

Did we want to see this mother and wife sit in a jail cell?  Did it make Brandon and his wife happy, or feel any better?  Did it feel like justice?  Of course not.  We all wish this had never happened and that this woman had not chosen to drink, drive, hit a cyclist and then intentionally flee the scene.  It impacted everyone's life in a negative way.  Situations like this are exactly the reason why Colorado bike advocates worked with the legislature to make the hit-and-run statute penalties stiffer: because if someone "accidentally hits a cyclist," that’s bad enough, but if they intentionally leave the scene and EMS is not immediately summoned to care for the cyclist, they may (and often do) die from their injuries.   Leaving the scene of a bike crash is an act that deserves to be punished harshly. 

If you’d like to read the sentencing hearing transcript: 

Trial Victory: Denver District Court

On April 4, 2013, D.K. was out riding his bike…straight ahead, in broad daylight, in a bike lane, at well below the speed limit (uphill, in fact).  He had no traffic control device ahead, just the wide open road, as he made his way back towards home following a hospital visit to a friend. 

At a road perpendicular to the one D.K was on, a man sat in his pickup truck, stopped at a stop sign.  D.K., a very experienced cyclist, and law enforcement official as well, glanced at the truck, noted it was stopped, and continued riding. 

Suddenly and without warning, the truck left the stop sign, and t-boned D.K., striking him on his side, causing him to land on the ground.  Immediately, the driver apologized, said he did not see D.K., and that he was at fault for leaving the stop sign and hitting D.K. with his truck.  In fact, the driver, Mr. H., was kind enough to load up D.K.’s bike (damaged and not capable of riding) into his truck bed, and he gave D.K. a ride home.  The driver was so remorseful and felt terribly.  The two stayed in touch, with the driver calling now and then to check on D.K.

D.K. experienced shoulder pain, knee pain and foot pain right away.  He did not feel it warranted a visit to the E.R.  Instead, he made an appointment with his ortho doc (a doc who’d treated him previously for knee issues) at Panorama Orthopedics.  He also saw this doctor for his shoulder injuries, and he visited his Podiatrist for his foot injuries.  Over the course of the next three years, D.K. tried PT, injections, and conservative treatment to heal his injuries.  The two primary ones that persisted were in his foot and shoulder.  Eventually, he required foot surgery and shoulder surgery.  He faces surgery to the other shoulder in the near future. 

Now, D.K. believed, as many people do, that the driver’s insurance company, State Farm (SF), would be reasonable and would work with him on the resolution of his claims.  He negotiated a settlement with them for his damaged bike (which they retrieved from him), and he kept them informed as his medical treatment progressed.  Finally as the end of his three-year Statute of Limitations (SOL) neared, he tried to resolve his bodily injury claims with SF and realized that they had absolutely no interest in being reasonable. 

He contacted our office approximately 6 months before his SOL ran.  In order to preserve his claims, we sent an offer of settlement to SF, to try and resolve the case outside of litigation.  Imagine our joint surprise when they offered a paltry $8,000.  This, when their own driver admitted 100% fault, and where D.K.’s medical expenses at that time exceeded $30,000.  We filed suit. 

During the discovery phase of litigation, depositions were taken.  Again, the driver admitted 100% fault and said there was absolutely nothing D.K. did to contribute to the collision, nor was there anything he could have done to avoid it.  During litigation, D.K.’s shoulder injury and pain deteriorated to such a point that he had to undergo shoulder surgery, which added to his medical bills, and also resulted in several weeks of lost income.  Despite these actual economic damages, SF advanced an offer that was less than 1/3 of his bills and wages.  The case was set for trial. 

Insurance companies will usually file what’s called a “statutory offer of settlement” in situations like this, which means they make a formal offer, which is good for 2 weeks, and if not accepted, it automatically expires.  The bigger effect of this action is that the burden is now on the Plaintiff (and his counsel) to obtain a jury verdict above that amount.  As such, if the jury comes back with a verdict at that offer amount or below, the Plaintiff can be held accountable to pay the defense trial costs.  This can include defense expert fees, such as doctor’s time and deposition costs, and more.  On average, these costs range from $20,000- $25,000.  As you might expect, it has the (intended) effect of placing immense financial pressure on a Plaintiff who is gearing up for trial; as not only is a jury hard to predict, but if the jury comes back at a low number, the Plaintiff can technically “win” the trial, but still end up paying through the nose for defense trial costs. 

Needless to say, the weeks before trial as a Plaintiff, and as a Plaintiff’s attorney, are incredibly stressful.  As trial approaches, the risks of an unknown jury verdict become very real.  It is truly an “all hands on deck” approach to being as prepared as possible. 

Sadly in this case, in the two weeks prior to trial, D.K.’s elderly and ailing mother passed away.  He had difficulty processing all of the emotions, feelings and stressors in his life – while still recovering from his shoulder surgery and being out of work.  It was truly a testament to his moxy and fortitude that he was able to focus and stay in the game as we went to trial. 

Trial was held in Denver District Court at the end of March.  The pro-cyclist jurors were stricken from the panel, as were the anti-cyclist jurors.  We were left – as is usually the case – with a neutral and somewhat unknown jury.  As the trial unfolded, we felt our case gaining momentum.  This became particularly so, when the defense called its client (its State Farm insured) to the stand.  Once again, the driver said he was 100% at fault, and really the only way for D.K. to have avoided the collision would have been to not ride his bike that day or to have taken another route.  Incredibly, defense counsel seemed to argue with his own client/insured, as he insisted that, “well, shouldn’t the cyclist have made eye contact with you?  Don’t you think he was foolish for assuming you’d seen him?  Don’t you think cyclists have a duty to be careful, too?”  To which, the driver repeatedly insisted that he was the sole cause of the collision.  (Keep in mind, State Farm’s answer and position the entire time, was that D.K. had contributed/caused the collision, and they wanted the judge to ask the jury to apportion fault on this issue). 

At this point the jury was clearly frustrated that the issue of fault was being beaten to death.  (We were too).  Sadly outside of the jury’s presence, the judge did ask defense counsel for any proof whatsoever that D.K. had contributed in any way to the collision, and defense counsel again asserted the issue of “Failure to make eye contact.”  The judge correctly pointed out that this was not a legal requirement and finally – for the first time in the 4 years since the crash - put the issue of fault to rest.  The Jury would be tasked only with determining damages. 

As part of their case in chief, defense also called their hired doctor, a physiatrist, to testify that none of our client’s injuries were related to the crash, and that neither surgery was necessitated by the crash.  His position was that our client – a man in his early 60s, who is an active cyclist, swimmer and law enforcement officer – led an active life that caused degeneration in his feet and shoulders.  The jury told us afterwards his testimony was totally disregarded because his positions were so outlandish.  Meanwhile, we called D.K.’s shoulder and foot surgeons to explain the injuries, their causation, and the need for the surgeries. 

In the end, the jury returned a verdict for a large portion of our client’s medical bills and lost wages.  They discounted some of them given the large lapses in time and medical care, which we knew going in was one of our biggest hurdles.  Then again, don’t patients trust their doctors?   If our doctors say, “rest, give it time, give the injections a chance to work, stop swimming, stop riding, stop doing pushups, ice, rest and give it more time,” don’t we typically trust our doctors?  D.K. certainly did. 

Ultimately, D.K. and his wife had several very hard decisions to make, going into litigation and going into trial.  Insured by State Farm themselves, they could not believe an insurance company with a driver/insured claiming total fault, would take such a defensive, denial stance.  D.K. and his wife kept hoping State Farm would do the right thing.  These are honest, hard working people who have saved to eventually retire.  They did not want to gamble their savings on having to possibly pay defense trial costs!  Yet this is the leverage disparity that injured parties find themselves facing when they decide to fight back.  It truly does feel more like a David and Goliath situation than it does a fair judicial fight. 

The final numbers were that D.K.’s verdict was approximately $100,000 above the best offer advanced before trial by State Farm.  Even more so, the defense doctor was exposed for what he is – hired testimony.  He earns millions each year providing “medical opinions” for the insurance industry.  One can only cringe and imagine how many deserving Plaintiffs his testimony has caused to be short-changed or even left hung out to dry with no recovery.  We hope that future juries will disregard him as ours did.

My hat is off to my client D.K. and his wife.  It takes an immense amount of courage to take on the system and a giant like State Farm, as they did.  We asked them to “Trust us” and of course we did all that was in our power to ensure a victory, but every lawyer will tell you that juries are loose cannons and one never knows what they will do during deliberations.  We certainly cannot ever promise a client a “sure victory.”  There is no such thing.  In this case though, our client was served well by the jury and by the process.  We are thankful and grateful for this outcome, and for the opportunity to serve him and his wife – two amazing, incredible humans. 

From L: Co-Counsel Rich Kaudy, Megan Hottman, D.K., and co-counsel Cajardo Lindsey. #TeamWorkMakesTheDreamWork

From L: Co-Counsel Rich Kaudy, Megan Hottman, D.K., and co-counsel Cajardo Lindsey. #TeamWorkMakesTheDreamWork

Ride on for Red Nose Day: west coast recap

There are bike trips ... and then there are BIKE TRIPS. This adventure was not only scenic, fun, mentally and physically challenging, and awesome, BUT it was also meaningful, impactful, and fulfilling!! How many of us wish for opportunities where we can put our love of bikes and bike riding to use for a greater good?! This trip was exactly that. 

In conjunction with Walgreens and its Red Nose 🔴 fundraising efforts, as well as People for Bikes and their mission to make riding better for everyone, we embarked on a four day journey from Santa Barbara to Vegas. I could put my thoughts and feelings into words but I'd rather share with you the incredible images taken by Meg McMahon as well as the videos created by Walgreens media crews (see videos below).  A few of my not-so-pro iPhone 6 photos are also included ;) 

I hope you enjoy reliving this experience as much as I do each time I see these images. Red Noses are raising millions $$ to impact and cure child poverty. Each Nose sold and dollar donated, means children can eat over the weekend when they aren't in school and they can receive life saving vaccines their parents normally could not afford. 

If you are moved by our mission I would be SO grateful for your $1 or $5 donation to MY PAGE! We are each trying to raise $5000. Thanks for reading and thanks for your support!!   

 

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Girl power on the front. Photo by Meg McMahon.  

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Miles of smiles ! Photo by Meg Mahon.  

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Teamwork makes the dream work. Photo by Meg Mahon.  

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All smiles as we embark on day 4! Photo by Meg Mahon.  

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Tim shows off while we grab ice cream.  

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Noses ON!! 🔴🔴🔴 

Juggling is not my strong suit ...but it did earn me a donation from P & G and I'm so thankful for their contribution to my fundraising efforts! 

Juggling is not my strong suit ...but it did earn me a donation from P & G and I'm so thankful for their contribution to my fundraising efforts! 

Meg McMahon's awesome shots of Days 1 & 2: 

Would this ND bill give drivers a license to kill?

“This [bill] seems to give room to folks driving cars to hit anyone, pedestrian or cyclist, and likely not be held liable,” Hottman says. “Every insurance company in civil claims in North Dakota would use this as a basis to deny claims by any cyclist injured or killed by a motorist. …The language here is so broad and sweeping, it really does open the door for all claims against a negligent motorist to be denied.”

Denver City Attny: 'Our Policy is to Plead 4pt Careless Charge to a 2Point Violation in bike cases'

On November 11, 2016, our client Brian Starling was riding his bike near S. Ulster Street and E. Technology Way in Denver, when a motorist hit him from behind (the police report described it as a “rear-end” impact).  The motorist told Denver PD, “the sun was in my eyes, I had no idea what I hit.  I thought it was a traffic cone. I pulled over to look at my car and that’s when I noticed the cyclist on the ground.”

The motorist was cited (appropriately, I might add –thanks to Denver PD) for careless driving – a four point violation which typically carries fines, the chance for restitution for the victim, (and in some cases we’ve handled, judges have used this charge and ensuing guilty plea to order community service, ranging from 24 hours to 125 hours).  Did I mention it’s JUST 4-points? 

 Denver Traffic Court handled the driver’s ticket.  Prior to the Court date, both my office and my client contacted the City Attorney handling the matter, Linda Lincoln.  She advised us that Denver City Attorney office policy is to “always plead these 4-point careless bicycling cases to a 2-point violation” and that Brian was welcome to attend the hearing so he could give his victim impact statement to the court before the court determined sentence. She also indicated, strangely, that she would not be present at night court.  Hmm.

In Brian’s words,

“When I spoke to Linda, she started off by saying, "I know you are probably upset, but this is the standard plea that we offer in these situations and any judge will accept this. I will not be in court tomorrow night, but you may show up and request that the court not accept the plea."

So – at 6pm, Brian went to Denver Traffic Court with his statement in hand, anxious to speak to the Court and to make his record about the way this collision affected him mentally, emotionally, and physically, as well as the ramifications it had on his family. 

Sadly – at court, Brian was prevented from speaking.  The court clerk told him he would not be heard, and Brian was left with no choice but to sit and observe as the case was called, pled down to a meaningless 2 point fine, and closed out.  The ultimate charge was a “failure to signal for turns,” a 2 point violation which resulted in a fine of just $176.

Brian recalls the conversation with the court clerk as follows:

 “Last night when I showed up and spoke to the clerk, he looked at my like he had no clue what I was talking about and said "I don't know if they'll let you speak, but wait until they call his name and I will see what I can do." I then waited for about 30-45 minutes to speak. Once the judge called his name, I walked to the front and stood by the clerk waiting for him to act. As the clerk continued to ignore me, this is our exchange:

Me: "Hey, shouldn't I be talking right now?"

Court Clerk: "I told you I can't guarantee that you will be able to speak."

Me: "I spoke to the city attorney about this yesterday and she advised me to show up and request that the court not accept the plea."

Clerk: "The city attorney doesn't come to night court."

Me: "I understand that, but she told me that I can request that the court not accept the plea."

Clerk: "This is an arraignment, we can not tell a person that they can not enter a plea."

 

Needless to say, Brian and I were stunned with the way the City of Denver City Attorney’s office handled this case, and of course outraged that the Court disallowed Brian from speaking.  That a victim would be invited to attend the hearing and then prevented from speaking, is unconscionable.  Talk about re-victimizing someone.

... Had he been given the chance, here is the statement Brian would have made to the Court:

In Mid-November I was hit by a car while riding my bicycle to work. The driver, Ben ____, hit me just 200 feet after the intersection where he turned onto the road I had been travelling and managed to reach a speed of 25 miles per hour despite the fact that he said the sun was blinding him to where he could not see the road in front of him. I was rushed to the ER in an ambulance and the dents on my helmet from hitting a tree stump are signs that this was a time when wearing my helmet could have saved my life. This man who acted so carelessly could not even be bothered to help me off the ground, and instead used our unfortunate time together to blurt out a myriad of excuses for his terrible decision-making.

When my wife, who is 25 weeks pregnant, and I hired our attorney to represent us in this legal matter, we made the assumption that as a citizen protected by a right to share the road peacefully with cars, that justice would be served for my endurance of doctors, appointments, time missed from work, and physical pain from this careless driver’s actions. Until I got word that a 4 point infraction was being lowered to a pathetic 2 point infraction in a plea deal against this driver’s license by the city attorney, who seems both unwilling and uncaring in doing her duty in protecting victims, I was steadfast in my confidence in my city to protect my right to be a citizen cyclist by taking a stance against careless driving. Shockingly, I was wrong.

From the outside looking in, it would appear this city is doing a lot to further cycling rights by adding bike lane mileage, and ensuring that most roads have shared road markers. However, it is in these secretive, almost fly-by-night proceedings that the city makes its true feelings known towards cyclists: that if you are a victim, you cannot depend on justice. That if you are injured by a careless driver, you cannot even count on the faintest hint of punitive action taken. The two point infraction you are levying against this driver is on par with the punishment for failing to use a turn signal. According to the city attorney, my well-being and safety is second rate to a careless driver’s. My suffering means less than his freedom to drive recklessly.

I strongly feel that the city attorney should be ashamed for lowering an already paltry infraction, when she should instead be furthering victim’s rights, making sure their voice is heard and that punitive action is taken against those who deserve it. From the outset, my attorney and I have not sought jail time, we have not sought any penalty that is egregious in any way. However, this driver deserves community service – a time to give back to his community and reflect on his actions when he has taken my safety and sense of peace when biking from me and others who will see this paltry infraction and fear for their own well-being on the road with cars.

I will spend my last words reminding this court and this careless driver that his failure to use common sense when driving almost cost my wife her husband, and our baby its father. Mere inches saved my life. I hope both the city attorney, the judge, and the driver in this case will spend quality time thinking about what I have just stated. As a forgiving person, I certainly hope you never have to encounter the extreme injustice served for me, my wife and our baby today.

Additionally maddening, Brian was prevented from requesting that the Judge hold the case open for restitution pending the outcome of the civil matter/settlement. If the driver’s insurer refuses to pay all of Brian’s damages, he would legally be entitled to seek the remaining out-of-pocket expenses from the driver directly as part of a restitution order in the criminal/traffic case.

If you are a cyclist who lives in Denver and you find this disappointing, please consider the following information:

The City Attorney who handled this matter:

Linda Lincoln

linda.lincoln@denvergov.org

720-913-8081

CA Code Enforcement

Fax: 720-913-8010

The Judge who oversees the traffic court judges is Presiding Judge Marcucci -his info is here: https://www.denvercountycourt.org/honorable-john-marcucci/

We believe it was Judge Callum who heard the case, however it seems to have been the court clerk who made the error in disallowing Brian to speak.

Their contact ph # is here : https://www.denvercountycourt.org/judicial-information/

Or see also: https://www.denvercountycourt.org/judicial-discipline/  ::: 

"Contact the Denver County Court Judicial Discipline Commission, 1437 Bannock Street, Room 108, Denver, CO 80202 (Telephone 720-865-7870) regarding the conduct of Denver County Court Judges or Magistrates.  Complaints regarding the conduct of other County or District Court Judges are handled by the Colorado Commission on Judicial Discipline." 

2Abreast & Sharrows

We received another great question from a local bike educator about riding 2 abreast and sharrows! 

(Photo used with permission by the folks over at Bike Fort Collins -check out their cool test here).

(Photo used with permission by the folks over at Bike Fort Collins -check out their cool test here).

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"The issue was a motorist had an interaction with two people who were riding double wide on a road with two lanes going in the same direction.  The cyclists were in the right-most lane and there was a sharrow on the roadway in the lane where the cyclists were riding two abreast.  The motorist pulled over to have a discussion with the people on bikes because the motorist thought it was against the law for the cyclists to ride two abreast on the roadway (they were impeding traffic in one lane).  The cyclists said to the motorist that their interpretation of the law was that it was legal for them to ride two abreast and impede traffic for the narrow stretch because a sharrow was present.  In the area where the cyclists were riding, an individual cyclist would likely need to take the lane regardless.  Does riding two abreast in that scenario constitute something lawful or illegal?  An individual cyclist would likely need to impede traffic for a period in order to pass through the area that was too narrow to share with a motor vehicle.  In addition,  does the presence of the sharrow have any legal implications?  Does it indicate that riding two abreast for a stretch of road is legal?"

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First, please refer to my previous blog post about riding 2abreast, generally.  

Second, let's talk about what a sharrow is and what it means! 

Wikipedia defines a shared-lane marking or sharrow as a street marking installed at locations in Australia, Canada, Spain, or the United States. This marking is placed in the travel lane to indicate where people should preferably cycle.

The US Manual on Uniform Traffic Control Devices says shared-lane markings may be used to:

“

A. Assist cyclists with lateral positioning in a shared lane with on-street parallel parking in order to reduce the chance of a bicyclist impacting the open door of a parked vehicle;

B. Assist cyclists with lateral positioning in lanes that are too narrow for a motor vehicle and a bicycle to travel side by side within the same traffic lane;

C. Alert motorists of the lateral location bicyclists are likely to occupy within the traveled way;

D. Encourage safe passing of bicyclists by motorists; and

E. Reduce the incidence of wrong-way bicycling.

See also, NACTO's discussion of when and where sharrows should be used.  (NACTO is a non-profit association that represents large cities on transportation issues of local, regional and national significance).

Third- so does the presence of a SHARROW indicate cyclists may ride 2 abreast, if it (as (b) above indicates), demonstrates that the lane is too narrow to share with a car? 

Short answer: no.  A SHARROW is painted on the roadway - but it is not a separate facility or "built for the exclusive use of bicycles" as a bike lane or bike path would be.

C.R.S. 42-4-1412 refresher:

(6)(a) Persons riding bicycles or electrical assisted bicycles upon a roadway shall not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles.

 (b) Persons riding bicycles or electrical assisted bicycles two abreast shall not impede the normal and reasonable movement of traffic and, on a laned roadway, shall ride within a single lane.

 So then -other than alerting motorists that the roadway is too narrow to share and that they may encounter a bicyclist riding in the center of the lane, what else is important to know about sharrows? 

Well -they change the liability analysis on the part of the city or municipality that installed them.  (See Boub V. Township of Wayne for further discussion on the issue of "permitted/intended users of the road" discussion.

Conclusion:

Although a sharrow serves to alert motorists that a cyclist may be in the middle of the traffic lane (basically just painting the law that a lane too narrow to share means the cyclist may take the lane), it does not change the analysis of WHEN cyclists may ride 2-abreast in a roadway in Colorado.   

With regard to the specific question posed above, it is unclear whether the 2 riders were "impeding traffic" or not -we don't have enough info to answer that.  If there was just one motorist behind them who was inconvenienced, the answer would likely be no, they were not impeding traffic.  

 

 

Riding 2-abreast: when and where it is permitted?

A friendly bike educator sent us the following inquiry:

"Hi, Megan:

We have been teaching the Bicycle Friendly Driver course to hundreds of people in Northern Colorado and it has been really well received.  A student in a class the other day brought up a point about side-by-side riding.  He went away and did some research and then wrote the following to me.  I’m hopingyou might be able to provide some clarification so that we are providing accurate information.

 Here’s what the person wrote:

-One of the behaviors cyclists do that upsets car drivers the most is riding side-by-side.  I felt the way this was conveyed in the class was a bit confusing, and might fuel the contention. 

    -What I heard you say was that if cyclists are being overtaken by faster traffic, they need to ride single-file.

    - What I had learned was that if cyclists were impeding the flow of traffic from behind by riding side-by-side, they needed to merge into single-file.  In other words, if there is a clear view ahead to allow cars to stray out of their lane to give a pair of cyclists a minimum of 3 feet, then it was Ok to ride side-by-side.

    -In reading the Statute [ ] it says:

        “Persons riding bicycles or electrical assisted bicycles two abreast shall not impede the normal and reasonable movement of traffic and, on a laned roadway, shall ride within a single lane.” 

I’m not sure what that means.  If one cyclist is on the shoulder and their buddy riding next to them is just inside the traffic lane, are they riding within a single lane?  When is it Ok to ride side-by-side?I appreciate any info you can provide!  Thanks, Megan.

First let's start with an analysis of the statute and its actual language.  We don't get to question why the legislature does what it does, we have to live with the actual words contained in the law.  Often times, a strict reading of the law can provide answers, but not always.  

C.R.S. 42-4-1412(6) addresses when cyclists may ride two abreast:

(6)(a) Persons riding bicycles or electrical assisted bicycles upon a roadway shall not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles.

(b) Persons riding bicycles or electrical assisted bicycles two abreast shall not impede the normal and reasonable movement of traffic and, on a laned roadway, shall ride within a single lane.

Reading the two sections together, I conclude the following:

-Cyclists may not ride MORE than 2 abreast, unless they are somewhere exclusively for bikes (which would really only be a bike lane).  Anywhere else, 2-wide is the absolute legal max. 

-Cyclists may only ride 2 abreast IF they are not impeding the normal/reasonable movement of traffic. If the cyclists riding 2 abreast ARE impeding traffic, the implication here is that they ride single file!

What does "impede" mean for purposes of this section?  I'll share some thoughts i've learned from law enforcement:

a) I know it when I see it.  Impeding = cyclists 2 abreast are causing traffic congestion, cars are backed up, there is a traffic jam/chaos; or

b) many sheriffs offices have a loose standard of 5 or more cars backed up behind the cyclists riding 2 abreast = impeding traffic.

Next- The Statute Definition section defines roadway:

(89) "Roadway" means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk, berm, or shoulder even though such sidewalk, berm, or shoulder is used by persons riding bicycles or other human-powered vehicles and exclusive of that portion of a highway designated for exclusive use as a bicycle path or reserved for the exclusive use of bicycles, human-powered vehicles, or pedestrians. In the event that a highway includes two or more separate roadways, "roadway" refers to any such roadway separately but not to all such roadways collectively.

Now - to address the questions asked above:

-Being overtaken by faster traffic does not, by itself, mean riders need to go single file.  Riders need to single up if their riding side-by-side is impeding traffic. 

-If an overtaking car is able to pass the 2-abreast cyclists safely with the 3-foot passing distance, this is not impeding traffic.  If the riders become aware of vehicles behind them unable to pass, then the cyclists would be well-advised to single up. 

-What about one cyclist on the shoulder and one in the roadway? Well -let's reference the definition above.  Roadway EXCLUDES shoulder.  The statute governing 2-abreast riding refers to roadway.  Therefore reading the two together, if one cyclist is on the shoulder and one is in the roadway, this legally = one cyclist on the roadway (as the law would disregard the cyclist on the shoulder for purposes of the 2-abreast analysis).  The same would be true if one rider is in the bike lane and one is in the roadway.  Though legal, this is not always advised- it is preferable for the 2 riders to ride side-by-side in the bike lane, since that is an established place created for them to ride, and it therefore frees up the traffic lane for cars.  NOTE however: there is no legal requirement that mandates cyclists MUST ride in a bike lane where it exists.  

My suggestion: If a rider is so new or inexperienced as to be uncomfortable riding closely to a cyclist next to them, it is advisable to simply ride single file.  We are looking for a pretty tight two-by-two formation in application of this concept to make it possible for cars to pass (and to give 3 feet!).  Practice riding close side-by-side with your mates in parks or quiet streets or bike paths, to develop this skill.  Most bike lanes and shoulders are wide enough for two cyclists to ride next to one another and then you can remain social with your riding partners without needing to be in the roadway at all! 

#200women200miles: Megan Hottman

Megan is a lawyer. She is a cycling advocate and team leader. She is a finisher of the Dirty Kanza 100!

Tell us about your biking: I ride ALLLLLL the bikes  My stable includes MTB, CX (one is a SS), Road bike, TT bike, Track bike and fat bike. All Cannondales except for my track bike and Spot CX belt drive. Plus my 1995 Bridgestone commuter (first “real” bike I got – bought it when I was 15!). I started road racing around 2002-2003 and raced road and then track through 2011. I began switching to more CX and gravel races in 2012-2013 and am firmly hooked on the long distance stuff now. Long gravel races like Kanza and also Ironman triathlons – I just completed my second IM a few weeks ago. Beyond riding for fitness and fun, I also began using my bikes for transportation in earnest in 2012… I ride to work, for groceries, to the bank, library, hair salon, you name it … I LOVE the days my car never leaves the garage. I enjoy riding bikes in a kit but also in jeans and a dress coat too. I think it’s good for motorists to see us in all forms of cycling.

Read more here!