Riding with a Camera: ALWAYS a good Idea!

"Typically it's the drivers who hit a cyclist from behind that try to get away from the scene because the cyclist is often not in a position to ID the fleeing driver,” Hottman continues. “Also cars that hit cyclists from behind tend to be traveling at a faster speed, hence the increased need to capture backward-looking footage. Forward footage is good, too, but most cyclists don't have the cash or desire to run two cameras on every ride.”

Check out today's Bicycling Magazine article on this topic! 

http://www.bicycling.com/culture/how-cyclists-can-get-on-bike-video-footage-taken-seriously

 

"I wasn't hit, but I was {harassed/yelled at/honked at/buzzed/menaced/threatened/ ____}... what can I do!?"

The truth is, being harassed, buzzed (passed so closely from behind, that the hair stands up on your arm and neck), yelled at, incessantly honked at, had objects thrown at you (beer bottles and fireworks among the most common), or any other variety of these types of behaviors, is REALLY, REALLY SCARY to a cyclist out riding their bike.  Some days it feels like motorists see a cyclist as the "dog they want to kick" after a bad day - when they take out their life's frustrations and anger and unhappiness on us - as we sit there next to them in the bike lane, or to the right side of their car on the roadway, just trying to get to or from our home or office, just minding our own business ...we are vulnerable and often unaware until the venom is directed our way. And man, is it unsettling.

Does this outweigh our true love and enjoyment of cycling?  HELL NO!  But do we need to discuss this?  Yep!  

At least weekly, I receive a text, email or message, such as the 3 texts below, received from friends within the past few weeks:

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So - what can you do?  Many folks choose to vent their experiences on social media, and while it feels really good to get the support of your community in response, the reality is that these posts don't do anything to solve the actual problem.  Instead, here are my suggestions for actual conduct - actual response - actual behavior - which we hope can begin to curb these behaviors.  At the very least, they serve the purpose of tracking these motorists and notifying authorities, in the event this person ends up threatening or hitting or killing a cyclist in the future.  

Does it take time and effort to report these motorists?  Yes.  Is it time well spent if you felt threatened?  Yes.  Authorities cannot take action with social media posts/vents (and they won't). Save the information below in your phone for future use:

1) Call Colorado State Patrol Aggressive Driver hotline (or your state's equivalent).  Here, it's *277 (*CSP) on your phone.  The hotline has been approved for use by motorists to report drunk or erratic drivers, AND it's been approved for use by cyclists to report motorist aggression.  They will want license plate numbers, vehicle description, driver description - as much info as you can provide (video or cell phone photos are a bonus!).  

CSP claims that it collects this information and once a driver has been reported 3 times, will visit the driver AND issue a citation where appropriate.  This is something well worth your time.  

2) Call your local law enforcement authority (especially if this happens within a City).  You can simply call 911 if you don't know it, and ask the dispatch to connect you to the local jurisdiction NON-emergent line.  Take the time to give them your statement, all of the information you collected, and they may even ask you to remain on scene so they can come and take your statement in person.  I've seen some local authorities then contact the motorist, if still in the area, or attempt to locate them to have a discussion and/or issue a warning or ticket if they feel it is warranted.  

3) When you get home, visit the Close Call Database, and enter all information in that you can.  This is not a law enforcement website - it is privately run by a cool guy named Ernest, who is doing his best to collect this information, and if you sign up for it (free) via strava, you'll also get notifications when other riders update the database concerning incidents in your area.  The mission is also to gather information about repeat offenders in the hopes that information can then be provided in comprehensive form to law enforcement.  

4) If you do believe that sharing the photos of the vehicle/driver/license plates will serve your social media circles, feel free to post them as a general "heads up" to your friends.  I have seen these posts come full circle, where someone else knew the person in the photos and sometimes those ties result in good outcomes.  (For example the driver is mortified to learn that their boss' best friend saw a post about them harassing a cyclist on FB).  

Finally - you've heard me preach this before, but camera footage makes documenting these incidents even easier, and makes law enforcement's job easier as well, if the video clearly shows the license plates, vehicle, and driver... identification becomes less of an issue and videos don't lie.  Be Proactive.  Don't just vent online.  Make the calls above.  It matters! 

BLOG ADDITION (8/7/17): I sought some input from one of my most trusted law enforcement resources and he's given me permission to share his email here: 

I agree with you Megan. When a cyclist feels threatened, harassed, or endangered they should report it to the law enforcement agency with jurisdiction. That itself can be a challenge – municipalities are pretty clear cut – but on roads in the unincorporated areas it could be the Colorado State Patrol or County Sheriff. Every situation is different and the outcome will vary depending on the facts. The more evidence you have the better result of the outcome. In other words if you have video clearly showing the location, vehicle description, license plate, driver, etc. it is much easier for the officer/deputy to take action – whether it be educating the driver, summons, etc. Even if you don’t have video it shouldn’t preclude you from calling – just remember it’s your word against theirs. Just be aware if we do write a summons there is the potential for you to be called as a witness in court. While it is our job to sort through the stories, it can be difficult and/or impossible, to determine the facts in some cases. I can’t promise every deputy or officer will respond in a manner that you want but I can tell you in Boulder County we are working hard to move the needle to reduce the tension (or maybe better said in a Boulder way – increase the harmony) between cyclists and motorists.

Megan mentions the Close Call Database and I encourage you to use it either when you don’t have enough information to file a report or even when you have a police report filed so the data can be collected there as well. Ernest is doing awesome work in this arena and we all need to support it. I’m also aware the City of Boulder has a similar database for reporting close calls. And while posting to social media feels good at the time it is usually not productive in educating the violators. Also key to remember everything you post is eternal.

Now, It sounds like I’m pro-cyclist and you should call on every aggressive motorists right? Well I am a road cyclist but also a motorist. I give the same speech to the motorists about cyclists who violate the law. We are supposed to share the road – so it’s a two way street. I tell motorists to call and report unsafe or illegal cyclists as well. I encourage you to self-police your fellow cyclists when you see them break a law. This weekend I was riding up to Carter and a cyclist blew through the one-way section against a red light. Bad enough, right – but he literally rode past 6 or 7 motorists patiently waiting for the light to turn green. I yelled at him as he went by at 25 mph. What I should have done is follow my own advice, blown off my ride, turn around and catch up to him, and educate him on the damage he just did to our sport.

Thank you for reading.

— Commander Lance Enholm, Boulder County Sheriff’s Office

Cheryl's Story: Conquering fears and inspiring others!

We first met Cheryl in 2012. She was hit by a car while riding her bike, and she hired our firm to represent her.  Following the close of her case, she joined our cycling team, and began racing road races and criteriums.  Unfortunately, she suffered a bad crash last season during a race, and her injuries prompted surgery and a lengthy recovery.

Cheryl is the consummate ambassador, teammate, friend, and source of inspiration.  She reminds us that we can let setbacks keep us down, or we can fight back and turn them into sources of motivation and fuel for our fire- in whatever endeavor we pursue.  Please - enjoy her story!

*With huge thanks to Cheryl, Justin Balog, and the Dirty Kanza! (Click on the image below to enjoy the video!).

(Photo and Video by Justin Balog

10 Things I wish I Knew: a Guest Post

10 Things I Wish I Knew When I Started Cycling

Guest Blog by Tim McAndrew

1.     A good bike fit is worth every penny. Having the wrong set up, even if it’s only off by a few millimeters, can make riding a misery, particularly on longer rides, and can lead to chronic injury and pain. So do yourself a favor: spend the $150-200 to get a proper bike fitting from a reputable bike shop -- your body will thank you later.

2.     Unclip early. Until you master unclipping from your pedals thoughtlessly, a tip that will serve you well is to unclip a foot before you even apply the brakes. This simple exercise will train your brain appropriately and will hopefully keep you from falling straight over at a crowded intersection (and bruising both your body and your dignity).

3.     Bonking sucks. If you’re heading out for a 1-2 hour ride, typically you won’t need to bring any food -- a 16-20oz bottle of water will do you right. However, go out for any longer and you’re going to need to bring along some fuel. This is a lesson you don’t want to learn the hard way because bonking sucks! A good rule for new riders is 100 calories for each 20 mins on the bike. And get into the habit of always bringing a little more than you think you’ll need -- sometimes your body just demands a little more fuel than normal. Worst case is you’ll be the Eagle Scout of your group ride and be able to feed the one dude who forgot to pack enough fuel that day. 

4.     Speaking of Eagle Scouts. Unless you live in a climate where any type/amount of rain will bring utter joy and relief, pack yourself a rain jacket or vest. This is especially true if you’re riding in the mountains or in a damp environment like the UK or the Northwest US. Being able to cover your chest when the rain/temperature falls will protect you from losing critically valuable heat and energy. It will also make the ride significantly less stressful and more enjoyable.

5.     Spend $40 on a chain every 1500 miles. The last thing you want to hear your local wrench say is: “dude, you're gonna need a new chain ring and cassette.” Typically this happens because you’ve ridden with the same chain for so long that it’s stretched and carved shark teeth into those components. By swapping out your chain every 1500 miles or so, you’ll extend the life of your drivetrain by years, save yourself a lot of money, and save a lot of unnecessary time your bike needs to spend in the shop.

6.     Rinse. Lube. Repeat. Like looking after your drivetrain, get in the habit of always wiping down your bike, and especially your chain, after a ride -- it will extend the life of your bike and its parts. For your chain, wipe it down with a lint-free cloth, apply fresh lube, and then wipe off the excess. This will keep your chain shifting smoothly and keep you from being the annoying squeaky wheel on your next group ride.

7.     Group ride etiquette part I: Steady as she goes. When you’re out for a ride with more than yourself, there are some generally accepted group riding rules to follow. The first of these (you can read more here) is that everyone is expected to take a turn at the front, even if it's for a short "pull." When it is your turn, fight back the urge to show everyone how strong you are. Instead, do your best to ride at the same tempo / speed you were riding when you were in the pack. This is especially true if your turn at the front starts at the base of a climb – dropping your friends like this will put you in the doghouse. So, pay attention to your speedometer while you're in the pack and then try to hold that speed steady when it's your turn at the front. Master this skill and you’ll be looked at as a seasoned rider and avoid the bitter scorn and curses of your riding buddies.

8.     Group ride etiquette part II: Point out the shit. Another responsibility when you’re on the front is to point out the hazards in the road to those behind you. This includes rocks, potholes, sticks, debris, gravel, etc.  The way to be a pro at this is by concentrating on what’s ahead of you so you see it early, can gracefully maneuver your bike away from it, and simultaneously use the hand that’s closest to the obstacle to point it out. If you ride alone a lot and only do group rides occasionally you’re going to have to concentrate to remember your role here. And remember, if someone ahead points something out, you too should repeat the gesture so those behind you can avoid the obstacle.

9.     Know Thine Categories. Even if you don't race, understanding the very basics of racing categories helps understanding when others are talking about racing. Someone who races Men's Cat5 or Women's Cat4 is a beginner. This is where ALL racers start. Typically you cannot race at any higher category, regardless of how talented or gifted you are as a racer, without having earned your stripes in the beginner's ranks. Here’s where you learn how to ride in very close proximity to others, get a feel for how a group ebbs and flows, learn the importance of holding a line, and hopefully how to avoid the inevitable crashes that occur. Once you’ve done your time and/or start crushing the field, you’ll be upgrade to Cat4 (Cat3 for women). And from there you begin the march up the ranks until you reach your maximum potential. Who knows, maybe you’re a Cat1 Pro and you don't even know it.

10.  Turn off the Computer. Bike computers are great. They're very useful tools for gauging speed, distance, output, etc. But it's easy to get sucked into becoming a slave to the output from your bike computer, especially with apps like Strava and Training Peaks egging you on. Do yourself a favor, and occasionally turn off the computer and just get on your bike and go for a ride. This can be harder than it sounds when you’ve become a “slave to the device” but when you make the effort to do it, you’ll be rewarded with the joys of why you probably started riding a bike in the first place. So soak it up. Enjoy the scenery. Stop and take a picture. Do whatever it is that makes you one with the bike and revel in it!

... Speaking of pictures, here are some shots of our Century + Triple Bypass (replacement) Ride last Saturday - seriously, you CANNOT argue with the scenery, fun, friendship and memories that long rides with friends provide! (Photo Credit: Megan Hottman, Austin Sholly, Tim McAndrew).

"Love Your Helmet!" - A Guest Post About Denver Commuting

Guest post by Tim McAndrew: One awesome human, cyclist and commuter! 

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"Love your helmet!"

I LOVE hearing those words as I'm commuting by bicycle from Arvada to Denver and back. God knows we cyclists usually hear a lot worse. But not only is it great affirmation that I have a badass looking helmet -- that flashes and signals turns, by the way… -- it's even better knowing that I can be seen. That's my #1 goal when commuting -- being totally visible to motorists, other cyclists and pedestrians.

One could say I look a bit like a Christmas tree when riding my bike. But for the 16 - 27 mile routes that I take, I wouldn't have it any other way. I sport flashing white and red lights attached to the frame. And then I have the lights on my helmet (I ride with them in flashing mode), plus another flashing red on my backpack (when I’m carrying it). And that’s in summer months! In darker months, I add one 1500 lumen light mounted to the handlebars plus another affixed to my helmet. And then for flair, I will sometimes run a spoke light in the front! So yeah, it’d be really hard not to see me wheeling down the street.

I used to be a summertime-only, Bike-to-Work-Day kind of commuter. This was mainly due to the fact that there are no shower facilities at my office and schlepping a backpack back and forth in 95 heat sucked. But I slowly started figuring out how to overcome these minor obstacles. For instance, I’ve become a master at the 5-minute, I’m-taking-over-the-restroom kind of clean up – it’s amazing what some hot water and tea tree oil can do to get you feeling refreshed and smelling good!

But the real key for me in transitioning to a multi-day commuter was actually even simpler: just planning ahead. I found that if I keep towel, washcloth, and toiletries in a spare filing cabinet, and used a small portion of a storage closet to serve as my private armoire and clothes line, I could commute several days in a row! So I just store a couple pairs of slacks, a few shirts, a couple pair of shoes in there, and rotate through them as needed. Then I just shuffle stuff back and forth on days when I drive to/from work. Pretty simple!

That said, in fall, winter and spring, I still usually carry a backpack. Fortunately it’s fairly empty on the way in. But on the way home I usually fill it with the extra gear (heavier gloves, jacket, tights, etc.) I needed to fight off the morning chill/cold. I also stash in there the clear sunglass lenses I use to ride when it’s dark -- I swap to darker lenses for the ride home.

Which brings me to commuting times. I’m lucky enough to have a little flexibility in my schedule so I use that to my full advantage. My normal hours are 8:00-5:00, but on commuting days I work 7:00-4:00. This means leaving the house between 5:30-6:00a, which for all but the months of June and July means I’m usually riding in the dark for at least part of the way.

For me, riding in a little darkness is a great trade off versus riding later with a lot more vehicles on the road. This is definitely more the case in the morning where traffic is almost completely negligible. But it’s true in the afternoon as well. I estimate for each 15 mins I leave after 4:00p, the volume of vehicular traffic increases by 25%. So, yeah, I’ll take the early/dark option every time and twice on Sundays.

One thing that can wreak havoc on a bike commute is the weather. This is especially true here in Colorado where the weather changes lightning fast. So my best friend for commuting is my Weather Underground app. I use WU to check current temps and wind direction/speed of my planned route, and adjust both my route and gear accordingly. For example, there was one day where the temp at the house was 52 and when I hit the low point of my ride along Clear Creek, the temp was 28. So I able to dress appropriately and even altered my route so as not to ride through that low point.

I also use WU to track storm cells and their movements. As anyone who’s lived on the front range knows, once a cell crosses the foothills there’s no telling which direction it will go. But seeing them develop on radar, seeing how they are tracking, and then just looking out the window usually gives me enough info to determine which route I’m gonna take home. There have been days when a cell was right in my planned path, so I’d just adjust my route to skirt around it. But there have also been days when I’ve had no choice and to just grin and bear it. If it’s an exceptionally bad/wide storm, I’ll hang around the office and wait it out. Then make my way home after things have settled. Worst case, I’ll call the cavalry for a ride or even uber it home and leave the bike at work.

Bike commuting can seem daunting. And it’s true there are a lot of things to factor in and consider. But with a little bit of planning and a little bit of experience, it can be easy as pie. And it sure beats the heck out of commuting by car these days. You feel great and energized when you arrive at work, and even better when you get home. So much so, that rewarding yourself with that cold beer on the deck is both refreshing and totally guiltless!

Here’s to your bike commute…cheers!!

#ridemoredriveless

 

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: