Law

Lumber Truck Driver Cited with Careless Driving As Result of Cyclist's Video

But -Plea Deal Results in Defective Vehicle Charge…

A missed opportunity for justice—that is how cyclist Jonathan Wirth feels about the plea deal offered to the driver of a tractor trailer who violated the three-foot rule. The initial charge of careless driving was dismissed in Lafayette Municipal Court. Instead, the prosecutor reached a plea deal with the defendant on the lesser charge of a defective vehicle, which is a two-point violation. “How was that justice?” asks Jonathan.

This is why our office advocates to district and city attorneys to stop offering plea deals. Both Boulder and Jefferson County DA Offices have shown their commitment to holding drivers accountable and have been getting positive results for cyclists. Find out more about how DAs in Boulder and Jefferson Counties are handling cycling cases.

Here’s what happened to Jonathan. On April 9, 2019, he was commuting to work in Boulder County when the truck driver buzzed him within twelve inches of his rear pannier, coming even closer to his left shoulder. The wind created by the truck pushed Jonathan to the left and right and eventually forced him off the road into the dirt. He was not injured but was fearful for his life and felt the driver completely disregarded his safety.

Jonathan is not new to cycling. It was not his first time on a bike or even riding this stretch of State Highway 7 (East Baseline Road) in Lafayette, CO. He used to race both road and mountain bikes and is currently a level 3 National Interscholastic Cycling Association mountain bike coach at the high school where he teaches. He understands the rules of the road and strategies to stay safe. Jonathan wears a neon yellow jacket while riding his bike and is very visible.

As Jonathan was going to work that day, the paved shoulder he was riding on ended. Before taking the lane, he looked over his shoulder and saw a tractor trailer approaching. With his left arm, Jonathan signaled a downward swinging arm motion indicating to the driver to move over into the empty left-turn lane. He even made eye contact with the driver. 

Jonathan thought that the truck would move over, out of the lane, to safely pass him as all others cars had done on past rides. He was wrong—the driver came dangerously close to him. Jonathan felt like he was being pulled under the truck and was blown off the paved road. After collecting himself, Jonathan followed the truck on his bike and saw it turn into a gas station.  He approached the truck while the driver was inside the station and took photos of the company logo and license plate number. He learned that the truck belonged to a wood supply transfer company located in Lafayette.

The close call was captured on Jonathan’s Cycliq6 HD tail light camera. He is very thankful that he had his camera on his bike and plans to install a front-mounted camera as well to capture traffic in front of him. Since Jonathan had video footage, he decided not to confront the driver.

Following the incident, Jonathan took action. He contacted the company and was informed that they would send the information “up the chain.” On April 10th, the next day, he went to the Lafayette Police Department and filed a police report as well.  Jonathan showed Officer C. Hayford the video footage. In the incident report, Officer Hayford noted her observation of the incident from the footage as a “large semi truck with a trailer driving at a high rate of speed past Wirth.” On April 11th, Officer Hayford spoke to the driver by phone. According to the report, the driver thought that Jonathan was signaling his intention to get into the left-turn lane by sticking his left arm straight out to the side. When it became apparent that this was not the case, the driver started pulling into the left-turn lane. He told Officer Hayford that he thought he had given Jonathan enough room but also stated that he was unable to start moving into the left turn lane until he was nearly next to Jonathan due to oncoming traffic. 

As the video shows, he clearly did not give Jonathan the required three feet when passing as mandated by Colorado law.

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The law (C.R.S 42-4-1003 (1) (b)) states that motorists must give a bicyclist at least a three-foot separation between the right side of the driver’s vehicle, including all mirrors or other projections, and the left side of the bicyclist at all times when passing. 

It is important to remember that in states where there is a 3-foot law, there is likely to be a provision that allows motorists to cross a solid double yellow centerline when passing to give cyclists the minimum required distance—as long as it is safe and clear of oncoming traffic.

Actual signage in Boulder County thanks to Cyclists4Community and Boulder County Government

Actual signage in Boulder County thanks to Cyclists4Community and Boulder County Government

If there is oncoming traffic, drivers must slow down behind the cyclist and wait to pass. Do not attempt to shoot the gap between the cyclist and the oncoming car. You must give the cyclist three feet no matter what!

Following her conversation with the driver, Officer Hayford called Jonathan and informed him that the driver had a different version of what had happened. Jonathan asked for him to be cited anyhow. The driver was summoned to appear in court. 


Jonathan was willing to take a personal day from teaching to attend the court hearing and ask for his rights. As a result of the plea deal, he did not get that opportunity. 


He believes cyclists should be able to ride on all Colorado state roads. Jonathan has contacted the Colorado Department of Transportation the past four years about this section of road. They are currently in the planning stage of widening it.

If you are involved in a similar situation, we encourage you to file a report with local authorities and the Close Call Database. You can sign up for free via STRAVA. You will get notifications when other riders update the database concerning incidents in your area. The mission is also to gather information about repeat offenders in hopes that information can then be provided in comprehensive form to law enforcement.  You can also call the Colorado State Patrol Aggressive Driver hotline or your state’s equivalent. In Colorado, dial *277 (*CSP).  The hotline has been approved for use by motorists to report drunk or erratic drivers, and it has been approved for use by cyclists to report motorist aggression.

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Check out our blog post for more information on crossing the centerline to pass a cyclist.

You can also get some of our 3-foot law stickers by sending a request with your address to connect@hottmanlawoffice.com.

Jefferson County Taking A Tough Stand Against Drivers Who Injure Cyclists

A collaborative blog by Hottman Law Office, Steven Lykens and the Jefferson County DA’s office

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Steven Lykens—husband, engineer, competitive cyclist—made a point of attending and speaking at the sentencing hearing of a driver who caused him serious bodily injury.  He wanted to emphasize to the court, the district attorney’s office, and to the driver that the outcome of the case mattered to him and to the cycling community as a whole. 

On May 16, 2019, Steven addressed Jefferson County Court Judge Mark Randall and asked him to order 200 hours of community service as part of the driver’s sentencing. Considering the time that he spent in the hospital, at appointments with doctors, as well as time spent working to heal his injuries, Steven felt 200 hours was fair.

The driver, Miranda Lewin, was sentenced to 120 hours of community service to be completed in 120 days on the charge of careless driving. Her public defender argued for fewer hours, but Judge Randall did not back down. In fact, he told Lewin she is a terrible driver based on her previous (and subsequent) traffic convictions and warned her that she would be back in court if she did not serve her community service. Judge Randall reminded Lewin that drivers have a responsibility to their community, including cyclists. 

Lewin, who was 20 years old at the time of the collision with Steven, was previously convicted of driving a vehicle while impaired by alcohol/drugs in 2016, careless driving, and operating a motor vehicle as a minor driver with an unauthorized passenger in 2014. Her driver's license was revoked in 2016 due to the alcohol offense, but it had been reinstated prior to this collision.

On the morning of September 2, 2018, Steven was riding in a bike lane in Lakewood when Lewin turned right, directly in front of him, into a 7-11 parking lot. Steven collided with Lewin’s vehicle and was thrown from his bicycle, landing in the 7-11 parking lot. He was unable to move and yelled for someone to call 911. Lewin remained at the scene and was later cited by Lakewood Police for careless driving causing bodily injury. Steven considers himself “lucky” that he went over the hood of the vehicle instead of under it or into oncoming traffic.

He was transported by ambulance to St. Anthony’s Hospital with lacerations to his right ankle and right elbow, road rash, and an abrasion to his right cheek. Officer Barefoot of the Lakewood Police Department, who responded to the scene, was advised by the emergency room doctor that Steven had sustained a lumbar spine fracture.

As a result, Steven was in a back brace for eight weeks. He now suffers from permanent scoliosis from two fractured vertebrae and is one inch shorter than before the crash. His life and physical body are forever altered, and he is in constant pain. The collision has altered his mental state as well. Driving and cycling are still difficult for him, and he is worried it could happen again. 

During the sentencing hearing, Steven also thanked the Lakewood Police Department, the Jefferson County DA, and the court for holding drivers accountable when cyclists are injured. Often cases involving bodily injury are pled down to minor infractions, leaving victims to feel doubly wronged. 

The Jefferson County DA’s office did a fantastic job handling this case. Jefferson County DA Pete Weir wants the driving public to recognize their obligation to share the road with cyclists.

We take these cases of careless driving with injury involving cyclists very seriously and treat the victims with the same respect and dignity we treat victims who are covered under Colorado’s Victims’ Rights Amendment (VRA) which protects the rights of victims in violent crimes. Often these injuries are life-changing for victims and their families, and we do everything we can to help them through the criminal justice process.
— - Pete Weir, Jefferson County DA

In Jefferson County, careless driving/cycling cases causing serious bodily injury are generally treated as VRA cases by the DA’s office, thereby involving the victims throughout the process. Deputy DA Kate Rhodes, who handled this case, believes that the appropriate outcome was reached, and justice was served. 

Steven shown with Deputy DA Kate Rhodes (L), Megan Hottman, and Tracy Drake (R)

Steven shown with Deputy DA Kate Rhodes (L), Megan Hottman, and Tracy Drake (R)

My goal for this case was to get the defendant to realize the impact she has had on Mr. Lykens’ life and the gravity of his injuries. Mr. Lykens showed incredible patience and professionalism throughout the process.
— Deputy DA Kate Rhodes

A newly passed law, sponsored by Senator Mike Foote of Boulder and Representative Dylan Roberts of Eagle and Routt Counties, is aimed at making Colorado’s roadways safer for vulnerable road users (VRU), including cyclists, pedestrians, construction workers, scooter riders, and peace officers. Governor Jared Polis signed SB 19-175 into law on May 29, 2019. 

Careless driving that leads to seriously injuring a VRU is now a class 1 traffic misdemeanor. Convicted drivers could face restitution and a one-year suspension of their license. Courts could require drivers to attend a driver improvement course and perform community service.

Many of Steven’s friends have been injured while riding their bikes due to the neglect of a driver of a motor vehicle. He hopes that someday cyclists can ride safely on public roads without having to worry about being injured by a driver. 

Given the nature and extent of our clients’ injuries, I have always advocated to District Attorneys and City Attorneys that the FULL “careless driving causing SBI” charge needs to stick. NO plea deals, not when the injuries are so serious. Careless causing SBI is only a 4-point violation, with minimal fines. We need the FULL Charge in order to ask the Judge for serious community service hours, restitution, (and now with SB 19-175, for the driver’s license, as well). My request to all DAs and CAs we encounter: Be like Jeffco and Boulder DAs. Treat these cases as VRA cases and please, stop offering plea bargains.
— Megan Hottman, The Cyclist Lawyer

Please remember to be cautious around cyclists, or any vulnerable road user, and look for cyclists before turning—whether they are riding in a bike lane or not! 

To read more about the Jeffco DA’s office, click here.

To read more about Judge Randall, click here.

The Latest on Distracted Driving

The Latest on Distracted Driving

Current Proposed Legislation, Penalties, & Apps to Limit Distracted Driving

By Maureen & Megan

The Wednesday Memorial from January 22, 2019

The Wednesday Memorial from January 22, 2019

The Colorado Department of Transportation (CDOT) reports that distracted drivers cause an average of 40 crashes each day in Colorado. In a survey conducted by CDOT in 2017, 89 percent of participants reported driving distracted in the seven days prior to completing the survey. Sixty-seven deaths in Colorado in 2016 involved distracted drivers. If that number does not seem high to you, think of it this way instead. Every day, family and friends of those 67 people who died are dealing with loss and grieving for a loved one.

Nationwide, 3,450 people lost their lives due to distracted driving in 2016. Earlier this month, Arizona police officer Clayton Townsend was struck and killed by a distracted driver during a traffic stop. The motorist, Jerry Sanstead, crossed two lanes of traffic before colliding with the pulled-over vehicle and then Officer Townsend. Standstead was booked on suspicion of manslaughter, aggravated assault with a deadly weapon, and endangerment. He is out on a $100,000 bond. The Maricopa County Attorney's Office will now have to decide what charges to file against him. Townsend, 26, leaves behind a wife and 10-month old child.

In Colorado, lawmakers are working to improve the safety of all road users, whether motorists, cyclists, or pedestrians. A bill aimed at further decreasing distracted driving in Colorado was recently introduced to the Senate on January 24, 2019. Senate Bill 19-012 - the hands-free distracted driving bill -  is now under consideration by the Senate Transportation & Energy Committee. (Click here to take action).

Photo Credit: Bob Carmichael - Courtesy of Cyclists 4 Community

Photo Credit: Bob Carmichael - Courtesy of Cyclists 4 Community

SB19-012 would prohibit drivers of ALL ages from using wireless telephones while driving. Current law only prohibits individuals younger than 18 years of age from using wireless telephones.

The proposed bill also extends the existing provision of the use of wireless telephones to include all mobile electronic devices.  These are handheld or portable electronic devices used for amusement, transmitting wireless data, or voice communication between two or more parties, e.g.  pagers, electronic games, laptop computers, or tablets. Also included are wearable mobile devices with a touchscreen. Think watches that monitor your heart rate, daily activity, movement, etc. For a complete list of mobile electronic devices, click here.


Images below courtesy of the Colorado Department of Transportation - #CrashNotAccident

Penalties for distracted driving would also increase under SB19-012 as follows:

Source: Colorado Legislative Council Staff Issue Brief, Number 17-28, July 2017

Source: Colorado Legislative Council Staff Issue Brief, Number 17-28, July 2017

  • First violation - $300 and 4 points - a class 2 misdemeanor traffic offense

  • Second violation - $500 and 6 points - class 1 misdemeanor traffic offense

  • Third or subsequent violation - $750 and 8 points - class 1 misdemeanor traffic offense


Distracted driving is a global problem. Countries such as Canada are implementing tougher penalties. In Ontario, convicted distracted drivers will have their license suspended for three days on a first offense, seven days after two convictions, and for 30 days for third and further convictions. Fines would increase as well with drivers paying up to $3,000 for third or subsequent convictions.

One way to limit distracted driving is to use a cell phone blocking app or device. Drivers are prevented from making or accepting calls, texting, or accessing the internet while the vehicle is in motion.

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If you own an iPhone, check out the “Do Not Disturb While Driving” feature in your phone’s settings. Phone notifications are withheld while driving, and an automatic response will be sent to the person trying to reach you.

Apple CarPlay features Siri voice control and allows you to make calls, send and receive messages, listen to music, and get directions while keeping your hands on the steering wheel and your eyes on the road.

Android Auto offers drivers hands-free voice control using Google Assistant. The Assistant can help you get step-by-step directions, call phone numbers from your contacts, chat with your favorite apps, read your messages aloud, and text back.

There are plenty of apps on the market that help prevent distracted driving and help parents monitor their teen driver’s cell phone use. Check out the Drive Safe Mode or LifeSaver apps. LifeSaver blocks all phone usage and lets parents know that their child arrived safely. The app locks the phone once the vehicle starts moving. It gives drivers iTunes rewards for safe driving. Check out more apps here.

CDOT is working to bring awareness to driving safely on Colorado’s roads. Their digital message boards focus on distracted driving, seat belts and work zone safety. The messages are designed to grab the driver’s attention, and they get people talking. Maybe you have even noticed some of the messages directed at distracted driving.


Looking to the future, autonomous vehicles or self-driving cars may be part of the solution to making roadways safer. Many collisions are preventable and are a result of distracted drivers who text, talk on a cell phone, or enter data into a navigation app, etc. There are lots of pros and cons to autonomous vehicles. An argument for autonomous vehicles is certainly that 81 percent of the estimated 5.5 million car crashes that occur in the United States every year are caused by human error. Computers could reduce the number of collisions each year. There is also no chance for a computer to be distracted, which is a leading cause of crashes every year.

Currently, testing of driverless cars is only allowed in five states: California, Florida, Michigan, Nevada, and Washington. Experts predict that the first commercially available semi-autonomous cars could be on the road in the next one to two years. (More here).

A big piece of the distracted driving battle is making sure no cyclists are driving their cars (or bikes) with phones or devices in hand.  We have all seen it - cyclists sitting up on their bikes two-handed texting on their phones with their faces in their screens.  It is up to us in the cycling community to perfect our behavior and do this right, and lead by example.


CALL TO ACTION FOR CYCLISTS:

If cyclists driving cars cannot put down their own phones, how can we ask motorists who ARE NOT cyclists to do so?  We cannot lambaste "those motorists" for driving distracted while exhibiting the same behaviors. It always helps our causes and battles when we can say cyclists are doing everything we can as a group to improve our own conduct.

We have more information on distracted driving and what you can do to make the roads safer for all users in our blog post Take the Pledge:  April is Distracted Driving Awareness Month. Don’t put others at risk. Put your mobile electronic devices down while driving or just turn them off.


Colorado's New Stop-As-Yield Legislation

By Megan & Maureen: 

SB18-144

Bicycle Operation Approaching Intersection

Concerning the regulation of bicycles approaching intersections.

On May 3, 2018, Colorado Governor Hickenlooper signed into law SB144, or what’s commonly referred to as the Idaho stop, also known as a safety or rolling stop or “stop as yield.” In effect in Idaho since 1982, the law allows cyclists to treat a stop sign like a yield sign and a red light like a stop sign. In 2017, Delaware adopted a limited stop as yield law.

Interestingly, the new Colorado law isn’t actually a state law – it’s recommended language, which each individual city or county may now adopt at its option.

C.R.S § 42-4-1412.5 provides a statewide standard on the regulation of bicycles approaching intersections which local governments can choose to implement:  Idaho stops were already legal in Aspen, Breckenridge and Dillon, as well as Summit County, prior to the passage of this new law.

(1) At intersections with stop signs, a cyclist should slow “to a reasonable speed and yield the right-of-way to any traffic or pedestrian in or approaching the intersection.” The cyclist may then turn or go through the intersection without stopping.

A reasonable speed is considered 15 mph or less. Local governments may reduce or increase the reasonable speed but will be required to post signs at intersections stating the lower or higher speed limitations.

(2) At red traffic lights, cyclists are required to completely stop and yield to traffic and pedestrians. Once the cyclist has yielded, they may “cautiously proceed in the same direction through the intersection or make a right-hand turn. A cyclist may not go through the intersection at a red light if an oncoming vehicle is turning or preparing to turn left in front of the person.”

The law further states that a cyclist may only make a left-hand turn at a red traffic light if turning onto a one-way street. The cyclist must stop and then yield to traffic and pedestrians before turning left. NOTE: It is not legal for a cyclist to make a left-hand turn onto a two-lane road (one lane in each direction) at an intersection with a red traffic light.

This law does not give cyclists the right to blow through intersections: they still have to yield. 

Megan Hottman (@cyclist_lawyer) on Instagram: "Round 2 filming bike safety/motorist awareness #PSA videos today with the #bikeambassadors and..."

(Example see video at right: our friend Katie running a stop sign (part of a cycling video series the City of Golden is making-don't worry, this was a controlled intersection!)

At all other times, cyclists must comply with the rules set forth in CRS §42-4-1412 and 42-4-221 regarding the operation of bicycles and other human-powered vehicles.

The main argument for the Idaho stop appears to be that it increases safety for cyclists.  Senator Andy Kerr, who authored Senate Bill 18-144, is a cyclist himself. He maintains that the most dangerous time for a cyclist is when they are stopped at an intersection.  Colorado’s local bicycle advocacy group, Bicycle Colorado, was also strongly in favor of this new rule and was actively involved in its passage.

If a cyclist is not waiting at an intersection, they are less likely to be hit by a car. The faster they can get through the intersection and out of the way of motorists, the better. Additionally, when a cyclist can proceed through an intersection and get out in front of traffic, there is less chance of getting hit by a vehicle making a right-hand turn.

A study by Jason Meggs titled ‘Bicycle Safety and Choice: Compounded Public Cobenefits of the Idaho Law Relaxing Stop Requirements for Cycling’ found that a year after the Idaho stop law was implemented, cyclist injuries declined by 14.5 percent in Idaho. Meggs further stated that there is no evidence that fatalities increased as a result of the adoption of the law in Idaho.

“I'm an ‘Idaho Stopper’ who approves this change in traffic laws that favors cyclists. As a threatened road user group, cyclists need the added protection of bike-specific laws that promote safer cycling like the Idaho stop and 3-foot passing.” (Richard H.)

Another argument in favor of the law is that it legalizes what most people already do. A study by DePaul University’s Chaddick Institute for Metropolitan Development found that only about 1 in 25 cyclists come to a complete stop at stop signs. Two out of three cyclists go through red lights when there's no cross traffic. (See also- CU Study).

The most prevalent response as to why cyclists break the rules of the road was “personal safety,” with more than 71 percent of respondents citing that as a reason. Saving energy came in second for bicyclists (56 percent) followed by saving time (50 percent). Increasing one’s visibility was the fourth-most-cited response (47 percent) for bicyclists breaking the law. The authors noted that an overwhelming majority of bicyclists break the rules, but suggested they did so in situations where little harm would come to themselves or others.
— Aaron Johnson, a PhD student in sociology at CU Boulder : https://www.colorado.edu/asmagazine/2017/08/04/biking-bad

It has also been argued that it takes significant energy for a cyclist to start again after having to stop at stop signs/traffic signals.  The DePaul study suggests that “when cyclists sense there are no immediate safety risks, their desire to maintain forward momentum and conserve energy almost always exceeds their desire to strictly adhere to traffic laws.”

We solicited comments and feedback via our Facebook page and share below, some of the varying thoughts we received:

“I think it's a good thing for cyclists, codifying what a lot of people, frankly, were doing anyway. It doesn't absolve cyclists of a responsibility to ride safely, but just acknowledges the realities of bike riding.” (Brandon R.)

The new law could also improve the flow of traffic and reduce congestion by getting cyclists and motorists through intersections more quickly.

Another argument: traffic signs and signals were not created with cyclists in mind. Cyclists often have to wait at traffic lights until a motor vehicle triggers a sensor to change the light: 

“I approve of this, especially the red stop light law. So many times I come across stupid stop lights that won't change unless they detect a car. This will allow cyclists to proceed without fear of a ticket.” (Kerry N.)

Not everyone is in favor of the new law. Opponents argue that bicyclists should follow the same rules as motorists. They further maintain that bicyclist behavior will be even more unpredictable and dangerous:

“All users of the road have to abide by the same set of rules. Confusion will abound and accidents will occur.” (TJ R.)

Many worry that the new law should be implemented statewide and will lead to confusion for both drivers and cyclists since counties and municipalities can decide whether to adopt the law:

“The opt-in aspect is disappointing and will create significant confusion for motorists, cyclists, and law-enforcement. Imagine if Denver opts-in but Lakewood does not. So east of Sheridan you can use the Idaho stop, but west of Sheridan doing so will get you a ticket. Someone driving through Lakewood who sees a cyclist getting a ticket for rolling a stop sign will assume that behavior is not permitted anywhere. So when a cyclist does it in front of them in Denver, they're going to get angry and annoyed at the cyclist for (incorrectly) believing the cyclist is breaking the law. While I understand the need to add that piece in order to make the legislation palatable for the state legislature to pass it, the inability to have a uniform law that would improve cyclist safety is disappointing.” (Kathryn W.)

Some suggest that the law may create even more tension between motorists and cyclists:

“As a cyclist, I think it makes a lot of sense, but motorists aren't likely to see it that way. So, if widely used, I think it is going to inflame the notion that cyclists are an elite group who believe ‘the rules don't apply to them’ (because many motorists will be either unaware of the change or just dislike it). I also think you are safest on a bike on the road when you do predictable things - meaning that you act like a car. When you move in between being-like-a-car and following some pattern that drivers aren't used to, that is when people make mistakes because something happens they weren't expecting.” (Greg M.)

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We ran an informal poll of Golden-area cyclists to ask them if they were in favor of this rule, or opposed to it.  While some who live out of city limits did accidentally vote, the overwhelming majority voted in favor.

 

 

 

 

 

Moving forward, the challenge will now be to educate motorists, cyclists and law enforcement about the new law – if, and when, cities and counties decide to adopt it.  As of now, cyclists must still stop at stop signs and red lights until this language is adopted in their jurisdictions. And of course a cyclist always has the option to remain stopped at the red light until it turns green.  

We'd love your feedback/comments- what do you think about your local city or county adopting this legislation?  If you have a strong opinion, we recommend you let your local city council members know -chances are, they are debating this very issue right now! 

Lives Forever Changed

A collaborative blog by: Maureen, with special thanks to Chris, Rebecca, Laura, and Wally.

Sharing a passion for the outdoors and spending time with family and friends on a bike ride was how they had planned their day when the unthinkable happened.

Laura Burress and Rebecca Schmidt were on a 53-mile bike ride in Columbia, KY when they were struck by a motor vehicle. The driver, Ronald Franklin, admitted to the use of illegal narcotics. Both women had to be airlifted by helicopter to the University of Louisville for their injuries. Franklin, who was taking Percocet and using cocaine, was not injured.

It was April 17, 2016 when Laura, Rebecca and her husband, Chris Schmidt, were riding their bikes on a beautiful spring day. They had stopped several times along the way to have snacks, rest and take in the beauty around them.

The ride was Laura’s longest to date. She bought her first road bike in March 2015 and had been riding just over a year when the accident happened. Rebecca, not new to cycling, started riding road bikes 15 years ago. Both women were wearing helmets, gloves, glasses and had a phone with them. 

Laura remembers coming back into Columbia and riding around the square. Her last memory is turning onto Fairground Street and starting up a small hill. Rebecca, who was riding out front, has no memory of what happened before the accident. They were riding on or close to the fog line, which is the white line painted on the right side of the road and had the right of way. It was around 1:30 p.m. when Franklin, traveling at an estimated speed of 45 – 55 MPH slammed into Laura and then Rebecca. The impact sent Laura and Rebecca ‘flying.’ Laura landed 34 ft from where she was hit while Rebecca landed 24 ft away. Laura’s body took the brunt of the hit. Rebecca’s helmet shattered.

At the time of the accident, Chris was up the road about 100 feet waiting for Laura and Rebecca. He did not see the accident happen but he definitely heard it. He knew something was wrong and immediately turned around and headed back. He rode up to Franklin, who he described as slow to react, disoriented and very distant, and knew that he was impaired when he saw his eyes. “He had the look of a person who was under something,” said Chris. “When he looked at me, he didn’t even know what he had done.” Franklin said that he did not see the bicyclists and asked if he had caused the accident. Chris told Franklin to stay there and then asked a football player, who was practicing nearby, not to let Franklin leave. Franklin had gone back to his vehicle and was attempting to change his front right tire, which had been punctured by one of the bicycles. Chris suspects that Franklin was trying to leave the scene. According to the accident report, Franklin claimed that the bikes swerved out in front of him. This was disputed by witnesses.

Franklin, who has prior convictions, was arrested, charged with the following and tested for drugs:

  1. Operating a motor vehicle under the influence
  2. Two counts of assault in the 1st degree
  3. Disregard/failure to yield right of way to a pedestrian or cyclist.

He was booked into the Adair County Regional Jail.

Adair County EMS treated Laura and Rebecca and then transported them by ambulance to the local hospital, T.J. Health Columbia.

Laura’s husband, Wally, was at home at the time of the accident. He had just met Laura, Rebecca and Chris about an hour before to give them some fresh water. After the accident, Chris called Wally and Laura’s neighbor - a colleague of his from work - and asked him to let Wally know about the accident. Wally left for the hospital. He could hear her screaming when he arrived.

Around 4:30 that afternoon, Laura and Rebecca were airlifted to University of Louisville Hospital, a level 1 trauma center, due to the serious nature of their injuries.

To this day, Laura and Rebecca have no memory of the accident itself. Laura remembers waking up to severe and unbearable back pain. She was screaming as she was being moved from one stretcher or bed to another to get scans. The medical providers in Louisville told her that nothing was wrong with her back but the pain was horrible. “I remember it being so bad I just wanted to go back to sleep so I wouldn’t have to feel it,” said Laura. She feels that the University of Louisville did not listen to her and get to the root of her back complaints initially. “They sent me home with a spinal cord injury and fractures. I see pictures of how much road rash, cuts and bruises I had and think that had to have hurt. But I don’t remember the pain from that. I just remember my severe back pain.”

When Rebecca woke up, she had a neck brace on and was disoriented. She wanted to know where Laura was and thought that she had missed her son’s birthday, which they had celebrated three days earlier on April 14th. Rebecca sustained injuries to her head and was diagnosed with a concussion.

Both women were badly bruised, sore and swollen. They were treated for skin cuts and abrasions and were in extreme pain.

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Somewhere between midnight and 1:00 a.m. Monday morning, they were released on pain medication from the hospital in Louisville. Rebecca was told to follow up with her local doctor if her symptoms worsened.

Wally, Chris and Rebecca’s son, Cole, had come up from Columbia and were there to drive them home. It was about a 1 3/4 hour ride home. Laura has no memory of leaving the hospital, the ride, arriving at home or the next few days. People came and went. What Laura remembers more than anything is the pain. It took two people to help her get up and go to the bathroom. She needed help to shower and to change clothes. Her back still hurt so badly and she was miserable.

The next days were filled with doctors’ appointments for Laura. She saw an orthopedic doctor for her back, an eye doctor due to blurry vision and a neurologist. She had to go to the hospital for additional x-rays because she was so bloated and was not able to have a bowel movement. A trip to the ER was necessary after developing a severe headache and feeling sick after drinking Magnesium-Citrate to help with bowel issues. A CT of her head and abdomen were done and she was discharged with an order for Golytely, which is used to clean out the intestines. Laura’s nurse friends came over on the weekend to help her. They tried everything including home remedies and had her walk around until she could not go anymore because of the pain. Needless to say, she was miserable the entire weekend. On Monday, Laura went to the ER in Bowling Green where more scans were done and Laura was given more medication. She was discharged and thought, “I will go home and die and I did not care anymore. My stomach felt like there was so much pressure inside that something could burst anytime.” The combination of pain and medications started taking a toll on her. By this time, she began thinking that maybe she was crazy and it was all in her head.

There were more doctors’ appointments that week. Laura saw a gastroenterologist and followed up with the neurologist on Thursday. She had not eaten anything since Sunday. The neurologist took one look at her and called an ambulance to her office. Laura went back to the University of Louisville ER. It was about a two-hour ride. “It was a bad ride. My back hurt so bad and my stomach had pressure. I was strapped to the board and could not move. I prayed to just make it through the next ten minutes. Then the next ten minutes,” said Laura.

It had been 11 days since the accident. That night, Laura had an MRI and neurosurgery was consulted. A neurosurgery resident told her that the MRI was abnormal. He would review the results the next morning with the attending physician. On Friday morning, the neurosurgery team came in and told Laura that surgery on her back was necessary in the next 2-3 days. She had an unstable fracture at L1-L2 with torn ligaments and the disc was protruding into her spinal cord. Laura did not want to have surgery and asked about her options. The attending physician responded, “Your back is not stable. We can put you in a brace but you will be paralyzed in less than three months.” Laura requested a second opinion by a neurosurgeon. He agreed that there was no other option but surgery.

The following Monday, Laura underwent a 6-hour back surgery in which two rods and seven screws were placed. She was in severe pain after surgery and although on IV pain medication, it was difficult to keep it controlled. On Tuesday, therapists helped her get out of bed. Moving was painful. She would get light headed and dizzy every time she got out of bed. The pain was always worse at night. “I would cry and cry in pain every night. I hated nighttime,” said Laura. It seemed like the pain was getting worse after surgery. The pain, dizziness and bowel problems continued. The pain medication caused Laura to hallucinate.

After two weeks at U of L, Laura was moved to Frazier Rehab. Here she began to get a sense of independence back. She learned how to get out of bed by herself, how to put on socks and shoes and a bowel program was started. It was determined at Frazier that Laura had suffered a mild traumatic brain injury. She had daily cognitive therapy along with physical and occupational therapy. The therapy made her so tired that she would sleep after every session. Laura was sensitive to noise and movement. The first time her therapist took her outside, she wanted to scream. She covered her face and then her ears with her hands. It was too much stimulation. After two weeks at Frazier, Laura went home.

Wally was able to get time off from work and stay with Laura from the moment she was readmitted to U of L until she was released from Frazier. “My employer let me take off work as much as I needed,” said Wally. “I often felt helpless, but I stayed as much as I could.” Each room at Frazier had an extra bed for a family member. Wally, a friend or family member stayed with her. She was alone only one night during the entire time. Once Laura came home, Wally did the laundry for months because the washer and dryer were in the basement and he helped out with housework more than usually.

Although Rebecca’s injuries did not require surgery, her recovery at home following the accident was difficult and painful. She had bruising up and down her leg and swelling of her arm. The cog from her bicycle left a bruise on her backside. Chris remembers that she did not move very much. She would lie on the couch and sleep a lot. There was not a lot of light in the room and no noise. The TV was never on. Rebecca was very sore and stiff. After about a month, she started therapy. She went through cognitive rehab therapy, physical therapy, saw a neurologist and went to a chiropractor and mental health counselor. She describes herself as tough country girl and a ‘badass’ who has always been able to cope and handle situations on her own, so it is hard turning to others for help.

The accident has been life-changing for Laura, Rebecca and their families. By now, the visible injuries have healed. It is the emotional and physical pain, which no one can see, that they struggle with every day. Rebecca lives with the frustration of others not understanding what she is going through because she looks ok. “People expect I should be normal again but I am not.”

  • Rebecca receives 20-30 Botox shots in her head, neck and shoulders every three months. Some headaches are so severe that she has to sit or lie down in a dark, quiet room just to get her “head to calm down.”
  • As a result of the brain trauma, she takes daily naps to function, suffers from fatigue, confusion, memory and concentration problems.
  • She is irritable, anxious and sensitive to noise and light.
  • She has been diagnosed with PTSD.
  • She gets angry and frustrated. “The simplest things I used to enjoy from life are now points of deep frustration and pain.”
  • She has gained weight, suffers from depression and has noticed changes in her personality.
  • She does not have the energy for activities that used to make her happy.
  • Being involved in her family’s life is important but she can still only spend a limited amount of time with her niece and nephews.
  • Before the accident, Rebecca describes herself as happy, outgoing and fun to be around. She enjoyed socializing. Now, she does not want to be around anyone and is struggling to try to find happy things in life. “She is still not the same. She’s been in a dark place. She’s very reclusive. This accident has taken away her will,” said Chris when asked about how Rebecca had changed since the accident.
  • She used to exercise and enjoyed flipping houses.
  • Rebecca has tried riding a bike again but is fearful. Chris, who is supportive of Rebecca getting back on a bike, took her and Laura to a parking lot to get them riding again. Rebecca explained that within minutes of getting on a bike, she started vomiting and broke down crying. “No medicine fixes that,” she said.
  • Rebecca’s short term memory is severely challenged. She has to write everything down and set reminders on her phone. The cognitive behavior therapist has been helping her to retrain her brain and teach her techniques to cope.
  • Rebecca has missed important family events such as her son’s first college visitation and Chris’ Ironman races. She plans events around taking her medicine so that she can function in a reasonable manner.
  • There are financial concerns that cause her stress. For eight months, they depended solely on Chris’ income. They have a son in college and debts.
  • She has not been able to work a full day since the accident and wonders if she ever will. Rebecca is the Coordinator of Technical Support Services at Lindsey Wilson College. She works Mondays and Tuesdays until 2 or 3 in the afternoon and takes Wednesdays off to recover. She goes back to work Thursdays and Fridays. Chris explained that repetitive tasks naturally come back to her. However, projects out of the norm cause her brain to fatigue. “When she is rested, she is sharp,” said Chris. She keeps the books on their rental properties, communicates with the renters and does taxes. Rebecca worries that her employer is going to fire her for not being able to complete all of her job responsibilities and requirements. Rebecca has not received a full paycheck since the accident because she is unable to work 40 hours a week.

Laura, an RN, went back to work six months after the accident. She returned with limited hours and worked her way back to 40 hours per week in one month. In December 2016, the hardware in her back was removed and she was in the hospital for three days. She returned to work two weeks later and took a different position with her company where she could work from home ninety percent of the time. Laura has a standing desk for work and spends much of the day standing. Previously, she had traveled an average of 800 miles a week as a case manager covering Kentucky and Tennessee. She knew it would be difficult as a result of the accident to return to this position. Her employment opportunities in comparison to what they were before the accident are limited. She would have difficulty working as a nurse in many healthcare settings, especially ones that would require lifting and moving patients.

Her back hurts every single day and she believes that she will continue to deal with it the rest of her life. She is down from seven medications to two now for nerve pain and anxiety. Prior to the accident, she was not on any medication. Due to the side effects of opioid use, she has refused to take any such pain medications. Laura worried that she would get dependent. She manages her pain by stretching, exercising, ice, anti-inflammatories and a TENS unit. TENS is an acronym for transcutaneous electrical nerve stimulation, which is a therapy that uses low-voltage electrical current for pain relief.

Like Rebecca, she struggles with riding a bike again and is anxious the entire time. She really wants to get back to riding because she thoroughly enjoyed it. Wally worries about Laura’s safety. He is scared the same thing will happen again and would like her to ride on trails or places where there are no cars. The accident has put fear in her unlike any experience before and has become a big part of her life. She had several experiences in the hospital from this injury that were unpleasant and potentially could have been life changing. She made her family promise not to leave her alone and to stay with her while she slept. When leaving Frazier, the nurse advised her to wear a large shirt over her back brace so as not to advertise that she was injured. This could potentially lead people to believe that she was on opioid medication, which could result in someone following her home or breaking into her house. This only added to her overwhelming fear.

In addition, Laura and Wally have dealt with the following:

  • They have not been to the movies because Laura does not feel that she could comfortably sit through a movie.
  • She and Wally missed their annual vacation last year because she had used all her PTO time for her injuries.
  • Wally missed over a month of work between the hospital and medical appointments.
  • She has missed two funerals and her nephew’s wedding due to travel distance. When she travels now, even relatively short distances, she has to stop frequently to give her back a break.
  • Wally has not ridden his motorcycle as much since Laura got hurt.
  • Memory loss and trouble focusing as a result of her traumatic brain injury.

On top of all of the medical issues, the Burress and Schmidt families had to deal with legal issues. Chris reached out to our firm just days after the accident. Megan represented Laura and Rebecca in the civil case and she was able to obtain full limits from all applicable insurance policies. While the civil case resolved quite quickly, the criminal case dragged on until September 12, 2017 when Franklin was finally sentenced.

There was lots of frustration for the families during the criminal case. The Commonwealth’s Attorney, Gail Williams, who was prosecuting the case, did not communicate important information and dates to the families. They were not given adequate time to plan for traveling or time off from work.

The Kentucky Crime Victim Bill of Rights Handbook states that victims shall receive prompt notification, if possible, of judicial proceedings relating to their case. It goes on to say that attorneys for the Commonwealth shall make a reasonable effort to insure that victims and witnesses are notified promptly of any scheduled changes that affect their appearances.

Chris said it was embarrassing and frustrating how the case was being handled. Instead of waiting to hear from William’s office, Chris started calling to get updates and information. “It was always like we were in trouble for asking questions,” said Chris. He ended up filing a complaint against Williams. Wally felt like Williams showed no interest in helping the families and was lazy. Megan stepped in and attempted to act as a liaison between the families and William’s office, and as a guide through the criminal matter. When Megan called Williams to obtain information on their behalf and per their request, he hung up on her. Following this phone call, Williams sent Megan a letter stating that he was refusing to discuss the case any further and would not engage in any further conversations with her.  While he claims he was "more than happy to discuss the case with the victims," in truth, the victims were given the same treatment- radio silence, condescending tones, and last minute demands that they appear in court with no advance preparation or discussion. 

Megan continued to remain closely involved with both families until the conclusion of the case. She had no ulterior motive other than to see that the system properly prosecuted Franklin and held him accountable. The victims wanted to ensure justice against the driver who had caused so much harm and needed someone to represent them. Megan reflects, "It was pure teamwork, and while hard and exhausting at times, we all stayed the course until the end. We just kept pushing until we got information and answers.  How awful to have these victims treated like this by the appointed official elected to represent them."  “Mr. Williams was not serving us. He was serving himself. Megan became our best friend. She’s part of our family. She cared about us as individuals. She made us feel like a family member working on a case for a loved one,” said Chris.

Thankfully, Williams retired from his position during the criminal case. Brian Wright, a new, more determined and involved district attorney stepped in and handled the case until resolution. Chris describes him as more thoughtful, attentive to detail and an excellent communicator ... a polar opposite of Williams.

Since Franklin pleaded guilty to two counts of assault in the second degree (a felon), failure to yield right of way and driving under the influence (both misdemeanors), there was no jury trial. As part of the plea agreement, Franklin had to agree to have his identity used in a bicycle safety awareness video. The video would also include his statement at final sentencing. Mr. Wright recommended a nine-year prison sentence.

At the sentencing, Franklin gave his statement in which he apologized to the victims and asked for forgiveness. What he did not do, was take responsibility for driving under the influence that day. Instead, Franklin stated, “Anybody, anybody that rides bicycles and stuff, I mean people needs to be really careful of them ‘cause they are easy to miss.” Following Franklin’s statement, Mr. Wright faulted Franklin for misconstruing the cause of the accident and emphasized that it is not that bicyclists are hard to see on the roadway; it’s that people should not be driving after using cocaine and taking Percocet because it puts everyone in danger. Chris did not feel like it was a heartfelt, sincere apology. Franklin’s words were empty.

Laura and Rebecca were able to address the court during the sentencing hearing. Laura spoke first and read her victim impact statement. “Before the accident, I was active, independent and confident. I ran, swam, biked and worked out at least five days a week. My activity level has changed dramatically because I currently am unable to do the things I once did.” She went on to say, “I have had to learn how to ask for help and accept assistance with things I used to do on my own.” She asked the judge to consider the pain and suffering that she had been through and to remember that the pain was not over.

Chris read his wife’s statement. Rebecca was not able to tell her side of the story herself in court that day because the stress, anxiety and emotions connected with the accident would have gotten her too upset to speak. In her statement, she expressed that her life would never be the same because of Franklin but that she was learning ways to adjust. “It’s sad. I have to adjust my life because of you, because you have problems with drinking, drugs and other things. If you don’t think you have a problem, please look at your list of convictions.” She hopes that Franklin never gets to drive again because his recklessness almost took away two lives. In her final question to Franklin, she asked whether he planned on being part of the solution or whether he would continue being part of the problem.

The court followed the recommendation of the Commonwealth and sentenced Franklin to nine years. Due to the seriousness of the event, probation was denied. Franklin received credit on his sentence since he had already served one year in jail. He is eligible for parole in February 2018.

As the families try to move forward, Chris encourages Rebecca to remain positive. He leaves her thoughtful notes and flowers and even set up a bike on a trainer in the house for her. He reminds her how fortunate they are and kisses and hugs her every day.

Laura and Rebecca do talk about the accident. Sometimes they laugh, sometimes they cry. Rebecca bounces questions off of Laura since she is a nurse. Rebecca says they are both pretty positive and glad they made it out alive.

Did Franklin receive his just sentence?

Rebecca has mixed emotions. “I am a badass but tender hearted too.” He had so many prior convictions that he should not have been on the road. As for Chris, he is pleased that the judge chose the maximum sentence. He also believes in grace in the world and said that if our system says that this is the penalty, then grace should be allowed. He hopes that Franklin changes for the best.

What advice do they have for motorists and bicyclists?

  • Motorists need to slow down and share the road.
  • Don’t drive distracted. Pay attention while driving.
  • Bicyclists should do what they can to be safe and follow road rules.
  • Life is too short. There is no reason for motorists and cyclists to hate each other. We can share the road.
  • Act friendly and thoughtful.
  • Choose roads that are less traveled.

Laura has a final piece of advice; if it’s something you enjoy, don’t give it up. Don’t let fear keep you from riding, myself included. I want to enjoy riding again!

Instagram Picture Laura.jpg

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: 

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 

State Farm Works Hard to Reduce Plaintiffs' Rights to Recovery in CO

No-So-Good-Neighborly State Farm has adopted various approaches to delay the resolution of claims, to wear down its insureds, and to force claims into litigation. This is a business model, and it's not unique among insurers, (and also- here), but considered in context with bills proposed to the CO legislature, felt worthy of a blog post. 

A recent case of ours serves as a perfect example:  "J" was hit by a car while riding her bike, nearly 2 years ago.  Sadly the at-fault driver had very modest BI limits.  We obtained those for her, and then pursued the remainder of her damages from her auto insurer, State Farm, under her UIM (under-insured motorist) policy.  We tendered our offer of settlement to them back in July of 2016.  As part of these negotiations, State Farm demanded that we provide them "all of her prior unredacted medical records."

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Imagine -a lifetime of medical documentation -which would include wholly unrelated/irrelevant items! They also demanded an IME (independent medical exam = where they send their insured to a "doctor" of their choosing to be "examined").  

When we pushed back, they lawyered up! Against their own insured!  This is what you get when you faithfully pay your SF premiums for years, and then have the unfortunate occasion to pursue a UIM Claim for the injuries and damages you suffered from someone else's negligence!   

I wish I could say J's case is an isolated incident, but it is not.  

In addition, State Farm has been busy drafting bills for the Colorado legislature to consider, which -if passed - would substantially reduce Plaintiffs' rights to recovery and would reduce the settlement or verdict amounts that injured parties may pursue and/or ultimately receive.  Below are 3 of the 4 they have proposed.  We are sharing this information on our blog for a few reasons:

1) So that our current clients, whose cases involve either 1st party or 3rd party claims or lawsuits with State Farm, will understand "it's not personal."  All too often clients like J -who have faithfully paid their premiums to SF for years and years, ask me "why are they treating me this way? ... I've never even filed a claim before- why are they being so unreasonable/mean?"  I wish an insured's loyalty and years of premium payments were factors, but they are simply not.

2) So that State Farm insureds- and in our speciality, cyclists especially- will consider whether you want to keep your auto and home insurance with SF, knowing that if you need that UM/UIM claim someday, you know up front what their M.O. is. 

3) So that in the current political climate, you are informed, and if you so desire, you can make calls on the bills below.  

SB17-181 - Collateral-Source Rule Evidence Of Insurance

The bill modifies the collateral-source rule, which generally states that in a civil action for damages the jury should not be told about insurance coverage or other sources from which the plaintiff has received or may receive compensation (collateral sources). The bill allows evidence of collateral sources unless the plaintiff agrees to have the jury's award reduced by the lesser of: The amount paid or available to the plaintiff from collateral sources; or The amount of premiums or other contributions the plaintiff paid to those collateral sources.  The bill establishes the procedure for determining these amounts and the conditions under which the plaintiff may elect to invoke the collateral-source rule.
Sponsors: Senator Bob Gardner (R-Colorado Springs) and Representative Yeulin Willett (R-Grand Junction)

SB17-181 would change the law and allow wrong-doers to profit from the insurance for which injured parties have paid.  

SB17-182 - Uninsured Motor Vehicle And Medical Coverage

Current law forbids uninsured and underinsured medical coverage to take a setoff when medical insurance pays a part of the damages caused by a crash. The bill clarifies that this does not require the insurers to pay more than the actual damages caused by the crash.  An insurer is authorized to prohibit stacking the limits of more than one uninsured motorist coverage policy if the provisions are included in a single policy covering multiple vehicles or in multiple policies issued by one insurer or by insurers under common ownership or management. But this provision must not prohibit stacking of the uninsured or underinsured policies issued to an insured by different companies or to an unrelated person. The maximum liability under the uninsured motorist coverage is the lesser of the policy limits and amounts paid by a legally liable person or the amount of damages sustained but not recovered.

Sponsors: Senator Bob Gardner (R-Colorado Springs), Representative Patrick Neville (R-Castle Rock) and Representative Yeulin Willett (R-Grand Junction)

SB17-191 – Market-based Interest Rates On Judgments

The current rate of postjudgment interest is 2% over the Kansas City discount rate with a floor of 8%. The bill eliminates the floor. The current interest rate for judgments for personal injury damages caused by a tort is 9%. The bill ties this interest rate to the current rate of postjudgment interest.

Sponsors: Senator Jack Tate (R-Centennial), Representative Cole Wist (R-Centennial) and Representative Yeulin Willett (R-Grand Junction)

SB17-191 reduces the amount of interest insurance companies owe to injured people and takes away their incentive to make timely payments. 

Call to action: 

If you feel so inclined, please consider contacting your senators and representatives to tell them to VOTE NO on these bills.  To find your legislator, use this link - http://leg.colorado.gov/find-my-legislator - and enter your HOME address in the white search bar on the map.  

 

 

Breckenridge Road Rage Nets Driver Mere 24 Hours of Comm Svc

On September 26, 2015, around 1:00pm, Adam was riding his bike in Breckenridge, headed west on Boreas Pass towards Highway 9, when a white Ford Pickup truck drove up right behind him and then passed him on the left, coming within 2 inches of Adam.  The truck then stopped at the next intersection.  Adam approached the intersection, stopped next to the truck, and asked the driver why he passed so close to him.  The driver – a Mr. Clifton – yelled, “go F*** yourself and your cycling kit.”  He then got out of the vehicle and yelled at Adam, “why don’t you do something about it, I’ll kill you, you F***ing pussy.” 

The passenger in the truck yelled at Clifton to get back in the truck.  Clifton got into the truck and drove it forward.  Adam had the bike in front of him, and when he realized Clifton was going to drive the truck towards him without stopping, he put the bike out front of his body to protect himself.  Clifton’s truck ran over the rear wheel, chain stay area and down tube, luckily just missing Adam’s legs by inches.  Adam says he is lucky his legs were bent and tucked in, otherwise they too would have been run over.  The impact from the truck broke the rear wheel, bent the bike frame, and also injured Adam’s wrist.  Adam believed that Mr. Clifton was absolutely trying to run him over. 

Clifton drove his truck away.  Luckily, there was a witness who recorded Clifton’s truck license plates as Adam was lying on the ground.  They called police immediately.

The police ran the license plate of the truck and tracked down Clifton.  They issued him a citation for criminal mischief, harassment, and accident involving Damage. 

On August 11, 2016, the traffic case was heard in Grand County before Judge Casias.  The DA – Dominic Perrino, presented the facts of this incident, and Mr. Clifton appeared with his defense counsel, J.B.Katz.  

I want to point out the defense counsel’s statements, starting on the bottom of page 9.  She starts by saying, “Breckenridge has won a bunch of awards for being a bicycle-friendly town.  But Breckenridge is unusual in that they have past (sic) an ordinance that allows cyclists to use the entire lane, as opposed to, you know, you even see the license plates “Share the road.”

Huh?

Counsel goes on to say, “That doesn’t excuse what happened, but it does sometimes lead –you know, Mr. Clifton did not live here at the time in Breckenridge.  There is paintings (sic) on the road that say you can take up the – a bicyclist can take up the entire road.  And there is signs (sic) at different points, but there is not signs (sic) on a regular basis along a road.” 

Again –say what? 

Counsel continued, stating, “I’m not saying that excuses what happens (sic), but it does lead to some tempers flaring at some point, especially with people - -well, even for a lot of people that I know that live here.”   … “I want to put it into context that Breckenridge is unusual.”  

Wait, so... the city that wins awards and paints its roads with bicycle symbols in a state with “share the road” plates, somehow invites tempers to flare?  And how is Breckenridge unusual again?  I must’ve missed something… ? 

Judge then says, “I think there are times, even if you are a cyclist, with a cyclist’s behavior may get on your nerves.”  He goes on to say, “But you know, letting him push your buttons puts you into a dynamic that sort of has had you paying, you know, for awhile.”  … “Bicyclists are going to be here.  They do come up here to ride” … “The stronger, better one (sic), and even some of the not so strong, ride the road.  And whether they should be doing that or not, they have the right to.” 

Ultimate outcome:  Mr. Clifton charged a vulnerable cyclist with his pickup, enough to bend the frame of Adam’s bike, and received just 24 hours of community service, some driving points and fines.  24 hours!  That is 3 days of service.  That’s it.  When a suggestion was made that perhaps the service could be done in a cycling-specific context, the Judge said to Clifton, “if you do it with a cycling group and they find out (about this incident), it makes it unproductive for everybody.  You don’t need to listen to them jawing, and you don’t need your buttons pushed.” 

On the civil side of the case, it took from August 2016 when we tendered our demand, until March 2017, to get Clifton’s insurer, State Farm, to evaluate this claim fairly.  They started with a lowball offer and it took months -and finally our statement that we would be serving Clifton with a lawsuit (in Colorado, insurance companies don't get named as the defendant, their insured does)  – before they arrived at a reasonable number.  That is 6 months that we spent attempting to get State Farm to evaluate this file fairly.  Their initial offer was about ¼ of the final settlement number.  One-fourth! 

Then, once the settlement was reached on the amount, State Farm attempted to withhold settlement funds until we would give them Adam and his wife’s SSN#s and DOBs.  (This is not done for any other reason than to record their information in the insurance databanks, which insurance companies use to research future claims).  I pressed back, asking SF for their legal reason why they were entitled to this information and even stated that, if they made it a pre-condition to sending the settlement funds, we did not have a deal.  Funny –they went ahead and mailed the check without responding to my request.

This is the reality of dealing with insurance companies and this is why, when people ask us if they should handle a claim on their own, or hire a lawyer, we recommend involving counsel.  Insurance companies can be bullies, and it should be evident here that Clifton was a bully.  Adam did not deserve the treatment he received at the hands of either one.  We are glad he can finally close this chapter of his life and move on.

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.”