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Bikes and politics: Choosing the best candidate in CD2

September 17, 2009 / / Comments Off on Bikes and politics: Choosing the best candidate in CD2

Maybe you didn’t notice that we have yet another election next week, in L.A.’s 2nd Council District.

However, unlike the recent race in CD 5, I haven’t been involved in this one.

That’s partly due to the overwhelming number of candidates in the race. It was hard enough keeping up with a race with just six candidates, five of whom eventually submitted statements discussing their stands on local bicycling issues — including the eventual winner, Paul Koretz.

And partly due to plain old-fashioned political burnout, after last fall’s election, followed shortly by two elections in CD5 and the race in state Senate District 26, eventually won by Curren Price.

Frankly, by the time it was over, I didn’t want to hear from or about any more candidates. Even if they promised to turn the Santa Monica Freeway into the city’s first bike boulevard.

Fortunately, Damien Newton over at Streetsblog stepped in to pick up the slack.

So far, he’s managed to get responses from seven of the 10 candidates — which I’ve learned is no easy task. Some offered the typical by-the-numbers, guaranteed-not-to-offend anyone answers; yet a surprising number have shown real insight into this city’s many transportation issues.

Most of the candidates oppose the mayor’s plan to trade the city’s parking meters for a bundle of cash and a player to be named later, and oppose the automatic speed limit increases currently mandated by state law — something AB 766, sponsored by one of the candidates for the CD2 seat, would address. Even if some people don’t want to talk about it.

All seven seem to support cycling, as well as other forms of alternative transportation. And all support measures to help keep riders safer on the roads, with varying degrees of insight.

Cycling activist Stephen Box also seems to have made an impression on just about all of them. But then, he has a way of doing that. Just ask Tom LaBonge.

Even if you’re as tired of the endless electoral cycle as I am, though, this election matters.

And your vote matters.

So allow me, briefly, to be obnoxiously self-indulgent and quote something I wrote during the CD5 campaign. Because it’s just as appropriate today, in this election, as it was seven months ago.

One of these people will be the one we turn to when we need to address the lack of cycling infrastructure in this city. He or she will also be responsible, along with the other members of the council, for turning the Cyclists’ Bill of Rights from mere words to meaningful change, as well as addressing the future of transportation — and quality of life — in this city. And by extension, for every city in the surrounding metro area.

This same person will be the one you’ll reach out to whenever you have a problem or concern in this district — and hope that… he or she will actually listen to you, and do something about it.

It matters. Not just for the (2nd) District, but for the 4th, 12th and 15th. And every other district, and for every other cyclist, in the city.

In a race with this many candidates, and the notoriously low voter turnout in this city’s local elections, a single vote could actually make a difference.

Your vote matters. Your support matters.

It all matters.

No really, it does.

So take a moment to click on the links below and read what the candidates have to say. And if you live in CD2, make time to vote on Tuesday.

Assuming there’s a runoff — which is almost guaranteed with so many candidates — I’ll ask the winning candidates to get more specific about cycling issues before the next election.

Because we need to elect people who care about bicycling.

And about making this city a better place. For all of us.

Mary Benson

Chris Essel

Tamar Galatzan

Paul Krekorian

Michael McCue

Frank Sheftel

Zuma Dogg

Not responding as of Sept 17, 2009: Augusto Bisani, Jozef Thomas “Joe” Essavi, Pete Sanchez.

I won’t tell you how to vote. But considering that openness and responsiveness are two of important qualities a council member, failing to respond to Damien’s questionnaire really isn’t a good sign.

………

Santa Monica’s AltCar Expo will offer an expanded bike section, Oct. 2 &3 at the Civic Auditorium. The Anonymous Cyclist — whose secret identity I know, but you’ll never get it out of me — offers you a chance to write to anything you want about cycling. Anonymously, I assume. Damien drops Santa Monica from Friday’s Park(ing) Day Ride after Santa Monica drops Park(ing) Day. Alex gets the response he expected to his comments about bike theft vigilantes. The Valley gets its first Bike Kitchen/Bikerowave-style co-op. Elisa at Bike Skirt says just let her ride and don’t try to label her. Bob Mionske tells the tale of two young Canadians; one who grew up to be a cyclist, and the former Attorney General who went on to kill him. The Tucson Bike Lawyer says it actually is against the law to kill a cyclist in the bike lane, if they could only get someone to press charges. Finally, a cyclist in my home town is hit by a car; police say charges will depend on the extent of his injuries. Are they suggesting that it’s okay hit one of us, as long as you don’t kill anyone?

Category: General / Tags: , , , ,

What You Need to Know about Police Reports

May 25, 2017 / / 4 comments
Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP

 

A close up view of a traffic collision report form.

I settled a Malibu bike collision case in which the driver of a motor vehicle made a left turn into the cyclist. The accident happened at dusk; it was not dark out yet. The police report states that the cyclist was cited for “unsafe speed conditions” because the cyclist was wearing all black.

When I was taking the sheriff’s deposition, I asked him why he cited the cyclist for wearing all black. He told me he asked another officer at the station who told him that because the cyclist was wearing all black, he was going too fast for the conditions.

The cyclist was going 15 – 20 mph! This conclusion is absolutely wrong. What the cyclist was wearing had nothing to with “unsafe speed conditions” (VC 22350).

More recently I represented a woman who suffered serious personal injuries in a pedestrian collision. My client was crossing in the crosswalk, with the light, when she was struck by a motor vehicle. When I took the deposition of the police officer I asked him why he didn’t take a witness statement from the friend who was walking next to her at the time of the collision. His answer was that as a friend of the victim he figured the witness would be biased and would just back up whatever the victim said. Regardless, it was the officer’s responsibility to take statements from all witnesses.

I have represented hundreds of cyclists. The one constant in all of these cases is the police report. I’d estimate that 60 percent of the time, the police reports I see blame the cyclist for the collision.

So is it worth getting a police report? Simply, yes.

Though police officers are often biased against cyclists, they usually get the facts of a bike collision correct. Such details as: the time, place, weather, what direction each participant was going and where they were located when the accident happened, contact information for witnesses, confirmation of insurance, and any physical evidence at the scene, is usually recorded correctly.

It is the police officer’s conclusion that is typically wrong. Though I would much rather police officers would lose their cyclist bias, filing a police report is still beneficial to your legal case and to your insurance claim because it sets out in writing the basic facts.

If the police refuse to come to the scene or they come to the scene but refuse to take a police report, I suggest you go to the nearest police station and file a report yourself.

Police reports with tainted conclusions or incorrect facts also need to be addressed. You can go to the police station and file a Supplemental Statement. This allows you to correct the facts and is attached to the original report. Though the police won’t change their police report, at least your version or the correct facts will be in the report.

The filing of a biased or incorrect police report will make the handling of your case or insurance claim more difficult, but the police report and the opinions and conclusions of the police officer are not admissible in court since in most instances the officer did not see the accident themselves. This makes most police reports hearsay and not admitted into evidence.

Where police reports have an effect is on the insurance company. When the insurance company reads the police report and accepts the officer’s conclusions, it may refuse to settle your case or offer you much less compensation than which you are entitled.

The result is that we have to file a lawsuit, gather evidence, and take the police officer’s deposition to prove the officer was wrong. Frequently it is during or after the deposition stage that the insurance company will offer to settle the case to avoid going to court.

Now a days a number of cities – including the City of Los Angeles – will not send an officer to the scene of the collision if there are no injuries (and you should NEVER comment on injuries or guilt to ANYONE, including a police officer).

If you are in a collision and the police refuse to come to the scene, but you want a police report taken, you will need to go to the nearest police department to file a report as I mention above. Getting the facts on the record is always helpful.

Remember, filing a police report does not mean you have to file a legal case. It can assist you in collecting compensation for damages you incurred in the bike collision and, should you decide to take legal action later, a police report will be of value to your bike collision lawyer as he is pursuing your case.

 

*California Vehicle Code 21200: A person riding a bicycle or operating a pedicab upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle. . .

Jim Pocrass, Pocrass & De Los Reyes LLP

For more than 25 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers in America and to Southern California Super Lawyers lists for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com.

 
Category: Bikes Have Rights / Tags: , , , , ,

Attorney Solves the Great Mystery of the “No Biking In Crosswalk” Signs

February 18, 2016 / / 7 comments
Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP

USC Crosswalk Sign

Cyclists biking around the University of Southern California may once again be stopped and cited for riding their bikes in a crosswalk.

The officer stopping them, whether they are from the Los Angeles Police Department or USC security, when asked why they are writing a ticket might reference the sign that reads “Walk Bikes In Crosswalk” as the reason for citing the cyclist. What the officer apparently doesn’t know is that there is no such law, regardless of what the signs says.

At the Los Angeles County Bicycle Coalition Open House a couple of months ago, I met a graduate student who attends USC and who is a cyclist. He told me about this sign at Jefferson and Royal, and a few others like it, near the USC campus. He wanted to know if these signs were accurate and enforceable. A few days later he took and emailed me the accompanying photo.

I knew this wasn’t a question of law as bicycles can be ridden – legally – through crosswalks. So where and how and why was this sign on the street?

We contacted Sgt. Flynn of the LAPD, Central Traffic Division, who said, “I do not know of any California Vehicle Code section that states you can’t ride your bike in a crosswalk.  The only section that someone could be cited for, if it is an official sign, would be CVC 21461(a)vc ‘Official Traffic Sign or Signal-failure of Driver to Obey Regulatory Provisions.’”

So where did this sign come from and why is it still there? What we found out after many, many telephone calls and emails, is that the sign is reflective of old laws that empowered officers to cite bicyclists for not walking their bikes in a crosswalk. But that law was taken off the books in 2006.

This is not a new issue, particularly in the USC neighborhood. In September 2009, the Daily Trojan reported that a task force of LAPD officers and USC security was being put together to regulate safety. This would include sting operations set up at intersections to cite cyclists riding their bikes in crosswalks. Citations could cost up to $250.

On Jan. 12, 2010, four months later, Streetsblog wrote a more extensive article on this same topic called “If You Want to Know Bicycle Law, Don’t Ask the California Highway Patrol, Part 2.” Streetsblog reported that, as we know, there was no law that stated that cyclists had to dismount and walk their bikes in crosswalks. Ten years later, since the 2006 change in the law, we’re still discussing these same issues.

Los Angeles Department of Transportation has jurisdiction over most traffic devices – signs and signals – in the City of Los Angeles. DOT employees confirmed that this sign is a DOT sign and it was installed by DOT.

LADOT’s Bicycle Coordinator Michelle Mowrey was one of the people involved in the 2006 modifications of the California Vehicle Code that resulted in the removal of the law that bicycles had to be walked through crosswalks.

When we asked Mowrey about this sign, she told me that whether or not it is reflecting the pre-2006 law, it is a non-standard sign.  Mowrey told us that though the sign doesn’t appear in any Caltrans’ manuals, a black-and-yellow sign, as it is, indicates that it’s a warning sign, not a regulatory sign, which is black-and-white. Citations can be issued only on regulatory black-and-white signs. That’s why speed limit signs are black-and-white and “Share the Road” signs are black-and-yellow.

An LAPD representative said the LAPD was not involved in the signs. We were told their opinion of the sign is that it is a safety recommendation. Our question, then, would be, do LAPD officers know that or are they still ticketing cyclists for disobeying the sign? We don’t have an answer to that question.

We talked to three different people at LADOT about why these signs were up. In essence, they all said that after the law was changed, in 2006, steps were taken to remove signs like these on all city streets. These signs were overlooked, apparently, and it was just an oversight.

Mehrdad Moshskar, LADOT’s central district engineer, was our next stop. We were referred to him to find out how to get the signs removed. Moshskar assured me that all of these signs in that area of town would be removed soon.

People have asked me if I thought the signs originated with USC. I have no idea, and no one knew or was willing to tell me.

The official answer came from Tim Fremaux in the LADOT Bicycle Coordination Department who said, “Anyone can submit any traffic-related request via myladot.lacity.org and it will be reviewed. If DOT approves the request, it will be implemented on our streets.”

There are Traffic Division and Bicycle Liason meetings held on a quarterly basis, which are open to the public. These meetings include representatives from LADOT, USC, the Los Angeles City Attorney’s office and other public groups. For more information about these meetings, contact Lt. Chris Ramirez at 213-486-6000.

Meanwhile, if anybody goes past Jefferson and Royal, would you email me at info@pocrass.com and let me know if the sign is still up?

 

Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

For more than 25 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com.

Category: Bikes & the Law, Bikes Have Rights, Guest Columns / Tags: , , , , , , ,

Morning Links: A bridge over troubled roadway, post memorial hit-and-run, and buffed Cipollini in the buff

February 18, 2016 / / One comment

Metro is preparing to open a new pedestrian bridge linking the Universal City Metro stop to the Universal Studios across the street this April.

Because slowing traffic and fixing the street on busy Lankershim Blvd so it would be safe for pedestrians was apparently out of the question.

So if you take your bike on the subway to visit City Walk or take the studio tour, you’ll need to either cart it over the elevated walkway — if bikes are allowed on it — or risk your life crossing a street that city officials seemingly determined was too dangerous to fix.

………

Something is seriously wrong when a bike rider is injured in a left cross hit-and-run after attending a memorial for a fallen 13-year old San Diego bicyclist. Thanks to Bryan Jones for the heads-up.

………

Italian cycling great Mario Cipollini responds to complaints about riding without a helmet by donning one to ride on rollers. And doffing everything else.

………

Local

The Biking Black Hole is looking for volunteers to test its new bikeshare program starting next Monday; there will be two stations with 50 bikes in Beverly Hills during the pilot phase, part of the promised expansion of Santa Monica’s Breeze bikeshare program. Although the question remains whether users will be able to find a safe place to ride in the notoriously bike-unfriendly city.

CiclaValley urges you to write to keep Griffith Park’s Mt. Hollywood Drive closed to motor vehicles, citing Burbank’s Mariposa Street bridge debacle as an example of what could happen.

 

State

Irvine is asking bike riders to ring a bell to politely announce their presence. Or you could just say “hello” or “excuse me.”

The San Diego Reader talks to local residents who accepted New Belgium Brewery’s challenge to live carfree for a full year, and finds they like it.

Tres shock! A planned road diet reducing the Coast Highway in Oceanside to two lanes, along with bike lanes on either side, is meeting resistance from some local residents. Not unlike virtually every proposed road diet, and most bike lanes, everywhere.

The CHP blames a Palo Alto cyclist for making an unsafe lane change in a fatal collision; he was riding in a bike lane that forces riders to cross high speed traffic merging right onto an on ramp. From the description, it sounds like the real person responsible the tragedy is whoever designed the bike lanes in the first place. Not to mention whoever approved a 55 mph speed limit on a surface street.

A Dublin driver who hit a 12-year old boy riding his bike swears he didn’t do it on purpose; fortunately, the victim is expected to survive.

 

National

Dallas and Forth Worth plan a 64-mile bike trail connecting the two cities. Yet we can’t even manage to get a continuous bikeway connecting Downtown LA and Santa Monica.

Women bike messengers in Chicago call for an end to cat calls and harassment. Seriously, women should just be allowed to do their jobs, and ride a bike without being subjected to abuse.

Urbana IL police donate abandoned and unclaimed bikes to people who need transportation.

A Brooklyn street gets an upgrade from sharrows to buffered bike lanes after overcoming previous opposition. Meanwhile, the head of a neighborhood group is trying to stir up a scandal, saying two members of a community board should have abstained from the vote that overwhelmingly approved bike lanes on another street, even though it wouldn’t have made a damn bit of difference in the outcome.

NY Streetsblog questions why one police precinct openly permits illegal parking in a bike lane.

Outside reports on the sad last days of BMX legend Dave Mirra, who took his own life in North Carolina earlier this month; friends say he was depressed and had lost direction, despite making plans for a comeback.

 

International

Caught on video: A British cyclist narrowly escapes being hit by a large truck in a dangerously close pass.

Former Brit pro cyclist David Millar says he can teach young cyclists about the dangers of doping, following his two-year ban for using EPO. In that case, just imagine what Lance could teach.

Russian two-time road cycling bronze medalist Olga Zabelinskaya is cleared to compete in the Rio Olympics after accepting a postdated 18-month ban for a performance enhancing drug, which expired five months ago.

To cut down on congestion, Mumbai is proposing to ban all new car and motorcycle registrations after a yet-to-be-determined date; the city also plans 100 new cycle tracks, among other roadway improvements.

The five best places to ride you bike on your next business trip or vacation in Abu Dhabi.

Aussie world track champ Annette Edmondson is lucky to escape serious injury after t-boning a car on a blind corner at 31 mph.

A Singapore writer puts his own local spin on the old “we’re not (insert bike-friendly city here) cliché.

 

Finally…

Why roll when you can walk while you ride. Now you can use your butt to fill your tires.

And who needs wheels when you’ve got snow?

……..

Come back later this today when we’ll have the latest Bikes Have Rights guest post from LA bike lawyer and LACBC board member Jim Pocrass.

Category: Bikeshare, Morning Links / Tags: , , , , , , ,

Juries, Judges and Your Bike Crash

July 29, 2015 / / 14 comments
Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 

Jury box

This may well be the most controversial blog post I’ll ever write. It’s likely that many of you are going to hate reading this. Some of you will tell me that what I say here isn’t fair and that I’m blaming the victim.

Be assured, I’ve represented many bicycle riders in bike crashes and I know as well or better than anyone how the system is stacked against them. As to fairness, well, it isn’t fair that I don’t have the same head of hair that I had as a younger man either, but that’s the way it is.

What I’m going to tell you is the hard truth. It’s not fair, but it IS an undeniable, regrettable fact: many people have strong, negative feelings about cyclists. If you are in a bike crash and it goes to trial, the judge and/or jurors will probably not be cyclists.

Though the people on your jury and the judge presiding over your trial have probably encountered hundreds – if not thousands – of law-abiding bicyclists, those aren’t who they remember. They remember the helmetless cyclist who cut them off or rode through a red light and saluted them with a middle finger as they blew by. It’s always that “one” ne’er-do-well who people remember.

The U.S. Bicycling Participation Benchmark Report, commissioned by People for Bikes, reported that though the number of Americans ages 3+ who rode a bicycle last year is larger than had been previously thought, 30% of these cyclists rode 5 days or fewer in 2014.

The chance of getting a cyclist on your jury or a judge is probably even worse when you add the number of seniors who willingly sit on juries. (Think of that the next time you attempt to get out of jury duty or complain about being called for jury duty.)

The result is that the judge and jurors, more than likely, are going to be people who are biased against cyclists. When I am questioning potential jurors in a bicycle case, some of the most common comments I get from people are:

  • Bike riders ride recklessly, not stopping at red lights or stop signs.
  • Bike riders should ride on the sidewalk and stay out of traffic.
  • Bike riders ride too fast on the sidewalk.
  • Bike riders ride in car lanes, sometimes side-by-side or as a group, which interferes with traffic.
  • Roads are for cars, not bikes.

You know all this. If these things have never been said to your face, you’ve read them in comments on articles and posts on social media.

These are the people who are going to decide your legal case. Their inclination is going to be to blame YOU – the cyclist – for your own “accident.” Furthermore, insurance adjustors and defense attorneys know this, and they are going to cater to this bias.

It would be nice if more people understood the rules of the road. “Fair” doesn’t enter into the equation. In a trial, we have to deal with the hand we’ve been dealt, and in most bike crash trials, it’s contending with the prejudice against our cyclist client.

To be successful in trial it is critical for your trial lawyer to understand how people perceive you. As a trial lawyer, I have numerous strategies I utilize to attempt either to overcome this bias or to focus the jurors on the person the cyclist is, not his/her activity. I want the juror to see the cyclist as a person who has more in common with the jurors than s/he has different. An experienced trial lawyer utilizes specific strategies in every part of the trial, from jury selection at the beginning of the trial to how jury instructions are crafted near the end of the trial, and everything in-between.

I believe we can change these preconceptions, but it isn’t easy, and it isn’t going to happen tomorrow, next month, or even next year.

As a cyclist – whether you ride for recreation or as a commuter – you can be part of the solution. Here are some suggestions:

  1. Join the Los Angeles County Bicycle Coalition and your local bicycle advocacy organization. Even better, get involved. These people are on the frontline of change. At the very least, sign up for the LACBC’s e-newsletter (no membership required) and join these advocacy organizations’ Facebook pages. (And in a shameful plug, “friend” the FB Pocrass & De Los Reyes Bicycle Law page, too.)
  1. I suggested above that you join your local advocacy organization. Many of these are chapters of LACBC, all of them work together. Almost all cities have such organizations, including Claremont, Pomona, the Eastside, Santa Monica, Beverly Hills, Santa Clarita, and many more.
  1. Join the California Bicycle Coalition, our state-wide organization that is instrumental in lobbying for biking conditions and laws for California cyclists.
  1. Get involved with SAFE (Streets are for Everyone). The nonprofit advocates for changes in the law to make streets safe for bicyclists, motorcyclists, pedestrians, skateboarders, and everyone else.
  1. Know and follow the Rules of the Road. The LACBC has a wonderful wallet-sized brochure that explains what these are. They are available at every event attended by the LACBC. The organization also is offering FREE bicycle safety classes through the end of September throughout the Southland. Don’t be that one cyclist who will be burned into the brain of those who come in contact with him/her for his/her bad behavior.
  1. Cyclists over the age of 18 are not required by law to wear a helmet when they ride. We strongly urge you to wear one, regardless of your age. The obvious reason for wearing a helmet is that it very likely increases your chances of surviving or limiting brain injury should you crash. A less obvious reason is that not wearing one adds to the jurors’ and judge’s biases that you SHOULD HAVE BEEN wearing a helmet and if you had been wearing one, it would have protected you so your injuries “are your own fault.” (Don’t kill the messenger, please. I said I was going to talk reality here.)
  1. Think before you post on social media. Specifically, insurance companies and defense attorneys troll your social media accounts to see what can be used against you. What you write on social media will come back if you’re ever a plaintiff in a jury trial. Generally, furious posts filled with expletives (I understand the urge, believe me), reinforce non-cyclists’ attitudes about the “arrogance” of cyclists.
  1. Educate the non-cyclists you know. Back up your arguments with facts and statistics. Try to be calm and rational in the discussion, but the one-on-one discussions are the best way to change perceptions. Remember, no one goes out to kill someone with their car (okay, almost no one), but most drivers are angry because they’re scared. No one taught them how to share the road. No one taught them how to drive sharing the road with a cyclist. You can say that’s not your problem, but the truth is, it’s everybody’s problem.

Often when I read bikinginla.com and see the slap on the wrist so many drivers get for hitting cyclists, I am frustrated by the slowness of the process to eliminate cyclist bias. But it’s coming, and by working together, I believe we can make it happen.

 

Jim Pocrass Trimmed

Jim Pocrass, Pocrass & De Los Reyes LLP

For more than 30 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com or visit www.pocrass.com.

 

 

Category: Bikes & the Law, Bikes Have Rights, Guest Columns, Legal Cases / Tags: , , , , ,

Why Attorneys Tell You To Never Admit Guilt

June 17, 2015 / / 2 comments
Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 

Pocrass Photo 6-15

Immediately after any type of motor vehicle “accident” (bicycle, pedestrian, motorcycle, car), most people have two reactions: 1.) to blame the other person or 2.) to say “I’m sorry; it was my fault.” As a personal injury lawyer, I counsel people to NEVER admit guilt after a crash of any type. Whether you are or are not liable, I guarantee such a statement will come back to bite you in ways you never expected.

The most important reason for not admitting guilt, which is, in legal terms, admitting liability, is because you probably don’t really know the cause of the collision.

Example: We recently had a client who was in a Santa Monica bicycle collision. He came up to a four-way stop and rolled slowly through it, getting halfway through intersection. Meanwhile, an 80-something-year-old woman drove up to the intersection, stopped, and went, hitting our client in the intersection.

During the deposition, the woman insisted that she never saw anyone or anything in the intersection. (I admit, I laughed inside at the insurance company lawyer’s expression.) The insurance company settled for a five-figure settlement.

This was an unusual situation, but the point is, you really don’t know exactly what the complete cause of your bike collision is, and, therefore, who is liable. Yes, you might be partially liable if you do not follow the rules of the road, but there may be extenuating circumstances that contributed to the collision. These could be:

  • Road Design: the road or signage was not designed well, maintained, in disrepair, or missing.
  • Product Liability: your bike or the other vehicle could have defective parts or been repaired, maintained, or manufactured incorrectly.
  • Other Driver: also might not be following the rules of the road.

If any of these conditions exist, your case — even if you are partially liable for the collision — could allow me as your bike lawyer to argue for comparative liability.

California recognizes comparative liability, which states that each party might hold some responsibility for the collision. If your case were to go to trial, the judge or jury decides IF each party is liable for the collision and, if so, what percentage of liability each party is responsible for.

Consider this hypothetical situation: You are riding your bike at night. You have no lights on your bike. As you ride past a parked car, the driver opens his door and you are “doored.” You suffer serious personal injuries and your bike is trashed. The case goes to a jury trial.

The jury decides that because you were riding at night without lights — clearly against the law — you are partially liable for the collision. They may determine that you are 10% responsible and the driver is 90% liable. In that situation, if they awarded you a $100,000 verdict, you would receive $90,000 from the driver’s insurance company rather than the full $100,000.

Once you have admitted guilt at the scene (or in follow up conversations with the other driver’s insurance company), it becomes more difficult for your attorney to argue comparative negligence. It also means that it is more likely that the insurance company will either refuse to settle or low-ball its offer.

Trials are always more expensive in cost and in time than settlements, so if a fair settlement is possible, that is the more desirable route. (Of course you wouldn’t say THAT to an insurance company either because if it thinks you’re not prepared to go to trial you’re back to them either refusing to settle or low-balling their offer. It’s all a chess game with serious consequences for you.)

I have a friend who is a criminal attorney. He once told me the most difficult part of his job is trying to undo what his clients have told the police. As a civil attorney, I understand. It is very difficult to “unring a bell.” So, please, don’t admit liability or guilt. Let us sort that out later.

 

Jim Pocrass TrimmedFor more than 30 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com, or visit www.pocrass.com.

 

 

Category: Bikes & the Law, Bikes Have Rights, Guest Columns / Tags: , , , , , ,

How Did the Chicken Cross the Road?

April 28, 2015 / / 32 comments

Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 
 
Have you ever been asked a question in which the answer seems so obvious that it seems like a trick question? This happened to me recently. A reporter asked me if it were true that, as he was told by a police officer, that you could be ticketed for riding your bike the wrong way in a crosswalk.

The question flabbergasted me. Since when are crosswalks one-directional? Pedestrians walk in crosswalks in both directions. That’s why there are buttons and/or signals on both sides of the street.

Requiring cyclists to only travel with the flow of traffic would lead to absurd results. You would have to cross two streets to go across the street.

The legislature passed Vehicle Code 21650: A bicycle operated on a roadway or a shoulder of a highway, shall be operated in the same direction as vehicles are required to be driven upon the roadway.

Subsection(g) states: This section does not prohibit the operation of bicycles on any shoulder of a highway, on any sidewalk, on any bicycle path within a highway, or along any crosswalk or bicycle path crossing, where the operation is not otherwise prohibited by this code or local ordinance.

The legislative comments to VC 21650.1 say: That had the Legislature wished to include the term “sidewalk” or “crosswalk” it would have done so.

All of this naturally leads me to opine that for the bicyclist to be in violation of VC 21650.1 (riding the wrong way in traffic), the cyclist would have to be riding in the opposite direction of traffic AND be either a.) on the shoulder of a highway or b.) on a roadway. (Again, assuming there is no local ordinance against riding in a crosswalk.)

Shortly thereafter, I received an email from a woman asking for my help. She was hit by a car while riding her bike across the street in a marked crosswalk. The police claimed the accident was her fault.

The law says it is legal for you to go from the sidewalk – against traffic – and ride into the crosswalk to the other sidewalk.

However, if there is a local ordinance that prohibits riding on the sidewalk, which many cities do, especially in commercial areas, AND the local ordinance specifically states that you may not ride through a crosswalk, then riding in the crosswalk and/or the sidewalk would be illegal. If the local ordinance does not state that you cannot ride on the sidewalk or in the crosswalk, then it is legal.

Vehicle Code 275 defines a crosswalk and does not limit it to pedestrians. Subsection(b) expands crosswalks to include: Any portion of a roadway distinctly indicated for pedestrians crossing by lines or other markings on the surface.

Legally riding on the sidewalk – slowly – and looking before entering a crosswalk for other vehicles, especially those making a right or left turn, and looking for pedestrians, should be legal (again, assuming there is no local ordinance restricting you from riding through a crosswalk).

There is even case law that specifically addresses the issue of riding a bicycle on a sidewalk against traffic. In Spriesterbach v. Holland (Case B-240348) the Court of Appeal, Second Appellate District, Division Four, ruled on April 9, 2013 that: . . .because VC 21650.1 requires a bicycle to travel in the same direction as vehicular traffic only when ridden on “a roadway” or the “shoulder of a highway,” it does not by its plain language require bicycles to travel with the flow of traffic when ridden on the sidewalk.

The court continued: Pursuant to Section 21200, (a) persons riding a bicycle. . .upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division. . .except those provisions which by their very nature can have no application. . .because 21650.1 governs the direction bicycle travel on a roadway or shoulder. . .it does not by its plain language require bicycles to travel with the flow of traffic when ridden on a “Sidewalk.”

Riding fast through a crosswalk and not stopping to look is very dangerous. A cyclist that rides into a crosswalk at 10+ mph does not give the driver of a vehicle that is turning left or right time to see the cyclist.

I suspect that is why the City of Los Angeles passed L.A. Muni Code 56.15(1): No person shall ride, operate or use a bicycle . . .on a sidewalk, bikeway or boardwalk in a willful or wanton disregard for the safety of persons or property. This ordinance gives the police a lot of leeway to determine what is “willful or wanton disregard for the safety of persons or property.”

I believe that these topics are good areas for discussion, but legally, I would (and will) argue that, if no local ordinance disallows it, then it is legal to ride in a crosswalk in either direction if it is done safely.

By the way, the answer to the question in the title of this post is that the chicken crossed the road on a bicycle in a crosswalk after stopping and ascertaining that it was safe to ride slowly across the road. But you knew that.

For more than 25 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com.

*Sponsored post

Category: Bikes & the Law, Bikes Have Rights, Guest Columns / Tags: , , , , , ,

The Danger in Dog Day Afternoons

December 15, 2014 / / 2 comments

Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 
 

Recently, at the Los Angeles County Bicycle Coalition Open House, JJ Hoffman was telling me a story about her daily encounter with dog a couple of years ago. JJ said every day when she was riding to work she’d meet up with this same woman who was walking her dog unleashed.

Every day the dog took after JJ, which set the woman off who would run yelling behind her dog. It got so bad that JJ had the pepper spray out before she got to the street where she’d meet up with the dog. All that dog wanted, JJ said, was a taste of her calf.

JJ really didn’t want to spray the dog, though spraying the owner was tempting, and, luckily for everybody, JJ never actually had to take action.

Like JJ, I really like dogs. The dogs are doing what their instincts tell them to do: to chase prey. Irresponsible dog owners are another matter. They put the cyclist, the dog, and especially themselves in danger.

Bitten by a Dog

In California, if you are bitten by a dog, the owner is at fault. It doesn’t matter if the dog is leashed or not. It doesn’t matter if the owner knew or didn’t know that the dog had a “vicious nature.” California holds owners to “strict liability.” If you are bitten, the owner is liable for your injuries. There is no “free bite” in California.

Collision with or because of a Dog

When a dog begins chasing a cyclist, most cyclists tend to try to outrun the dog. When that happens, the dog’s brain goes into get-the-fleeing-prey mode, and the race is on.

Whether or not you can really outrun the dog, the real danger is in possibly colliding with the dog or colliding with something else because you lose control of the bike or you hit a pot hole or even getting hit by a motor vehicle when swerving or not being able to stop at a light or an intersection.

If you suffer serious personal injuries or your bike is damaged, again, the dog owner can be held liable. Your bicycle accident attorney should be able to obtain compensation for your injuries.

Compensation for Dog-related Collisions or Bites

The dog owner may be held negligent for:

  • Ineffective control of the dog.
  • Violation of the leash law and other Animal Control Ordinances.
  • Inadequate supervision or management of the dog.
  • Putting the dog in a condition in which the owner could have seen that the dog could cause injury to somebody.

Individual cities also may have their own animal control ordinances. For instance, one city limits the number of dogs that can be walked by one person at a time and a number of cities consider it a misdemeanor if a dog is tied to a parking meter, sign or bus bench without food or water nearby.

Some cities have ordinances specific to a breed. In Santa Monica a pit bull on public property must be muzzled.

The dog owner may be held responsible for compensating you for:

  • Medical bills from doctors, emergency rooms, hospitals, therapists, plastic surgeons, and for prescriptions.
  • Future medical bills to remove scars or to repair disfigurements. If the money for medical care is not recovered at this time, your health insurance might not cover any future medical procedures you need later, calling them “cosmetic.”
  • Time you had to take off from work resulting in lost income.
  • Lost future earnings because of disfigurement or disabilities.
  • Emotional counseling.
  • Pain and suffering.

Of course you can only recover compensation for injuries you suffer and care you actually need.

Hesitations to Holding an Owner Liable

One of the major hesitations a cyclist who is bitten by a dog often has in reporting a dog bite is the fear that the dog will be destroyed. A dog that has no history of biting is rarely “put down.”

The court takes into account the severity of the bite and the number of times it has bitten. It may rule that a dog must be muzzled in public or restrained in a particular way, such as kept behind a certain type of fence of a certain height.

Self-Defense

We all have heard that we have the right to defend ourselves against an attack from another person. What few people realize is that the law says you can defend yourself as much as is necessary to foil the attack. Your defense must be proportionate to the attack, and when the danger is past, so is your right to defend yourself.

This is a common law concept, and there is no explicit statement in common law that this also applies in a dog attack. More and more dog owners are counter-suing for compensation when their dog has been injured either intentionally or through someone else’s negligence.

So if you are going to use self defense, be sure that it is proportionate to the attack and that once the attack is over you stop, similar to how you would defend yourself with a human. That is a legally defensible act, though you could still find yourself in a lawsuit with the dog owner.

Personally, I subscribe to the belief that it’s rare to find a bad dog, but bad owners are much too plentiful.

*Sponsored post

 

Category: Bikes & the Law, Bikes Have Rights, Guest Columns / Tags: , , , , , ,

Insurance Companies Are Not Your Friend

May 7, 2014 / / 5 comments

 

Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 
 

Behind the warm and fuzzy jingles, the precocious animal mascots, and the deep-voiced spokespersons, insurance companies are faceless, heartless corporations whose one purpose is to increase premiums and to decrease payouts in order to make the biggest profits possible.

Simply put, THAT is why you need your own lawyer if you have a bike accident.

If insurance companies were “fair,” I’d be out of a job. I am pretty confident that unemployment due to insurance companies deciding to do the “right thing” is not something I have to worry about in my lifetime.

The reality is, after you have had a bike accident and the friendly insurance adjuster calls you, his (or her), goal is to come up with a reason not to pay you. If he can’t outright deny you compensation for your damages, he wants to diminish your case so the company has to pay you as little as possible.

Rest assured, everything you say to that nice insurance adjustor can and will be used against you in a court of law. That is why I – and every other personal injury lawyer – will tell you to refuse to speak to an insurance adjuster or insurance representative. Give the adjustor your lawyer’s name and phone number and hang up.

If you cooperate with the insurance adjuster and you are offered a settlement, it is likely that you are getting 10 cents on the dollar of the value of your case. I was once told by an adjuster that he received a bonus if he could settle a case within 48-hours.

Let me tell you about a case I handled. A client who had a Los Angeles bike accident injured his shoulder. He talked with the kindly insurance adjuster who sympathized and sent him to a doctor (an insurance company sending you to a doctor is a rare occurrence).

SURPRISE! The doctor recommended by the insurance company said my client’s shoulder was fine. The company offered my client $5,000 to settle his case.

My client’s shoulder really hurt. He finally engaged a lawyer (me), and I sent him to a doctor. The doctor I sent him to diagnosed a torn rotator cuff. He underwent surgery. We settled the case for $150,000.

Never forget that insurance companies have more knowledge than you do. They also employ an army of lawyers. They can throw more resources at your case than you even know exist. They have all the power, all the money, and the wherewithal to fight you when you are fighting alone.

You need an experienced personal injury lawyer to level the playing field. I have written here before about how to choose a lawyer, but it bears repeating to say you should look at how or where you got the referral, the lawyer’s experience in your type of case, and the results the lawyer has achieved.

Now go increase your uninsured motorist insurance to the maximum the insurance company will permit, and the next time you see an insurance company commercial, remember, they are not your friend.

*California Vehicle Code 21200: A person riding a bicycle or operating a pedicab upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle. . .

For more than 25 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition. For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com.

*Sponsored post

 

Category: Bikes & the Law, Bikes Have Rights, Guest Columns / Tags: , , , ,

Civil vs. Criminal Bike Lawsuits: How They Differ

April 16, 2014 / / One comment
Jim Pocrass, Pocrass & De Los Reyes LLP

Jim Pocrass, Pocrass & De Los Reyes LLP

 

Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP 

 

Streetsblog LA reported recently on the 3-year and 8-months plea deal that was struck by Wendy Villegas, the drunk driver who struck three bicyclists, resulting in the death of one of them, Andy Garcia, on the bridge on Cesar Chavez Boulevard last Sept. 14. Villegas never even stopped. It is only because a witness followed Villegas and was able to get her license plate number that she was apprehended. When the police booked her at 7:15 a.m., it is reported that she was still intoxicated.

The post talks about the effect of the plea deal on Garcia’s family and friends. How they weren’t consulted about the deal and that their only permitted involvement was that they were allowed to read statements at the sentencing hearing about how Villegas’ actions affected their lives.

I bring this up because it is important for you to understand the differences between a criminal case and a civil case. There is a growing outcry that drivers who commit hit-and-runs should get stiffer penalties. Personally, I agree. However, when you are calling for stiffer penalties, do you mean stiffer criminal or stiffer civil penalties?

A criminal lawsuit is filed by the government (district attorney), not by the person or persons who have suffered at the hands of the accused. The district attorney is acting for the state (read as “society”) and ensuring the stability of society by punishing wrongdoers and deterring them and others from offending.

The hard truth is that you, as the victim or wronged party, are witnesses, at best, in the trial. The criminal case is about the wrongdoer being accused by the state of a criminal offense against society. Punishment for crimes against the state can be incarceration, fines, community service, or, in extreme cases, the death penalty.

In a civil suit, the lawsuit is brought by the wronged party (or parties). They are appealing to the court for relief. They are telling the court, “We have been injured because of the negligence or carelessness of the accused.”

The civil court’s response is to give the victim (the plaintiff), the chance to show how the accused (the defendant), harmed them. If the victim can prove they were harmed, then the court’s duty is “to make them whole.” This is usually accomplished by awarding the victim compensation for their injuries.

Before I discuss the issue of compensation making anyone “whole,” I want to talk about one more significant difference between criminal and civil lawsuits.

Everyone is familiar with the “O.J. trial.” O.J. Simpson was found not guilty by a jury for the murder of his wife Nicole Simpson and her friend Ron Goldman in a criminal trial. Yet in the civil jury trial, O.J. was found guilty and was ordered to pay the Brown and Goldman families approximately $40 million.

How did that happen? There are probably numerous reasons, but the prominent reason I want you to know is the differences in “standard of proof” in criminal versus civil trials.

In a criminal trial the “standard of proof” is that the district attorney must convince the judge or every member of the jury that the accused is guilty “beyond a reasonable doubt.”

In a civil trial, the “standard of proof” is that the victim must demonstrate that there is a “preponderance of evidence” that the accused is guilty. It only takes a judge or a majority of jurors to find the accused liable in a civil trial.

In the O.J. example, it is obvious that the jurors in the criminal trial had doubts of O.J.’s guilt, where in the civil trial, the lawyer’s for the families of the victims had to convince the jury that the evidence of guilt was “beyond the balance of probabilities.”

Returning to the issue of compensation of the law making anyone “whole,” everyone knows that money cannot bring back a loved one or heal the catastrophic injuries the victim and their family suffered, or give anyone back the time they have lost due to the wrongdoer’s actions.

Every client I have ever had for whom I obtained a multi-million verdict or settlement has told me that they would give back every penny to have their loved one back or the injury they suffered to never have happened.

In legal terms, “made whole” means through compensation (which is the only currency that is available to the court), to bring the injured party to the place they would have been if they had not been injured by the wrongdoer.  What “making whole” means in a legal sense varies by state laws.

In the Streetsblog post referred to earlier, the families are quoted as saying they are not interested in bringing a civil case. They have no interest in money. I understand, and they should do what is best for them. But never think that the compensation obtained for clients doesn’t matter to them. This isn’t “jackpot justice” as the public relations machines of Big Business and Big Insurance would like you to think.

The compensation allows people who have been injured at no fault of their own – or families who have lost a loved one due to the negligence or carelessness of another – to rebuild their lives. In some cases it has meant being able to adapt a home and car for a wheelchair or for retraining for another career or for paying for quality childcare. It invariably means being able to pay the hundreds of thousands of dollars for current and future medical care. In some cases the compensation is put in trust for a child’s future use, for college or other advanced education.

Just as importantly, when the wrongdoer is a government entity or a corporation, it sends the only punishment either of those understands: a hit to their bottom line.

There is no doubt in my mind that we need stronger criminal penalties against hit-and-run drivers. I also believe that we need to bring these people to justice in a civil court. It is only when their insurance companies start seeing what these people cost THEM (yes, I know that’s horrible, but that’s how companies work), will the insurance companies start applying their own form of punishments.

I know, after 30 years of representing some of the most wonderful people who never deserved the injuries and losses they suffered, that the compensation mattered to the victim and it punished the wrongdoer. That’s really all the courts can offer us.

*California Vehicle Code 21200: A person riding a bicycle or operating a pedicab upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle. . .

For more than 25 years, Jim Pocrass has represented people who were seriously injured, or families who lost a loved one in a wrongful death, due to the carelessness or negligence of another. Jim is repeatedly named to Best Lawyers of America and to Southern California Super Lawyers for the outstanding results he consistently achieves for his clients. Having represented hundreds of cyclists during his career, and Jim’s own interest in cycling, have resulted in him becoming a bicycle advocate. He is a board member of the Los Angeles County Bicycle Coalition.  For a free, no-obligation consultation, contact Jim Pocrass at 310.550.9050 or at info@pocrass.com.*

*Sponsored Post

 

Category: Bikes & the Law, Bikes Have Rights, Guest Columns / Tags: , ,
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