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Steve Magas, Ohio's Bike Lawyer

Don't let a bicycle crash turn your life Upside Down! Lost wages and medical bills pile up while you are in pain. The last thing you need is to be taken advantage of by an insurance company.

Steve Magas, The Bike Lawyer, has been protecting the rights of riders for more than 25 years. Steve has handled more than 200 "bike cases" including wrongful death and brain damage cases, and accidents causing riders to suffer major injuries, fractures, disk injuries, back injuries, neck injuries, surgeries, road burns, clavicle and scapula fractures, rotator cuff injuries and more. Steve provides a FREE CONSULTATION to discuss your claim. Call him at 513-484-BIKE [2453] or write to him at bike lawyer [at] aol dot com to discuss your crash TODAY!

WHAT SHOULD YOU DO IF YOU ARE IN A CRASH?

WHAT TO DO IF YOU ARE IN A BIKE/CAR CRASH

By Steven M. Magas, Ohio’s Bike Lawyer

Is Cycling “Safe?”

Statistically, we know that riding a bike is a VERY safe thing.  While there are 30-40,000 motorists who die on our roadways each year, the number of cyclist fatalities has dropped considerably from a high of 1000 or so in the mid-1970s to  around 700 in 2008.  In Ohio, 10-20 riders are typically killed on the roads each year despite MILLIONS of active cyclists riding MILLIONS of miles.   While motorcycle and pedestrian deaths are UP, cycling deaths are DOWN. You can read about bicycle crash statistics here at the IIHS website.

One reason for this decrease in cyclist deaths nationwide, I’m sure, is that the demographics of the “typical” cyclist involved in a fatal crash have totally flip-flopped since 1975.  Back in the 1970’s, MOST cycling fatalities involved kids – people under the age of 16 – which meant that riders were somewhat unpredictable.  There were a lot of “Dart Out” cases where children on bikes would suddenly appear on the roadway after darting out from a driveway.

Today, virtually all cycling deaths involved adults.   86% of all cycling fatalites involve people OVER 16 today. Today’s adult riders are more likely to treat operating a bicycle on the roadway the same as driving a car.  They stay in their lane, know the rules of the road and don’t act in stupid or unpredictable ways – too often, anyway.

Think about it – how many kids do you see riding their bikes all over town today?  When I was a kid in the early 1970’s that’s what we did.  We left the house in the morning on our bikes and maybe came home for lunch.  We rode our bikes everywhere.  Today, there are many more people in the world and many, MANY more cars.  However, there aren’t all that many new roads, so all those cars are sharing pretty much the same road space that was available 30+ years ago.  Thus, traffic DENSITY is way up – there are simply more cars packed in per mile than ever before.  Today, safety concerns, increased traffic and the busy schedules of today’s youth demand that mom and dad DRIVE them around to their appointments.

In addition to this phenomenon, there is an increased interest in fitness in adults today.  In the mid-1970’s the only “older” [i.e., adult] folks you saw riding bikes on a regular basis were the hard-core cyclists.  Today, more and more adults are re-discovering the joy and fun of cycling and adding a fast ride to their fitness regimen.  Trails are well-used and many adult cyclists are taking it to the streets to go fast and stay fit.

2

So, What Should You Do If You Are In A Crash??

Here are a few tips that can help BEFORE you’ve been in accident.

  • Carry a cell phone. The cell phone can easily be a life saver. All cell phones will make 911 calls even if it doesn’t have active service.   You can also use today’s cell phones to document the scene by taking a LOT of pictures of the scene, the dog or car/bus/truck that got you, your injuries, the address, the dog’s owner, witnesses, etc.

Cell Camera

  • Carry Identification & Insurance Information. It’s a good idea to copy your drivers license and then write or type your emergency contact information, health, auto and homeowner’s insurance information, blood type and any medical conditions or allergies that you have on the back. Laminate the copy and keep it on your person when you ride. Also, remember to keep it up to date if there are any changes.   Carrying your health insurance information may seem obvious, but why do you need your auto and homeowner’s info?  Well, your AUTO policy may pay some of your medical bills or even your entire claim if the motorist that hit you is underinsured or you have a lot of out of pocket medical expenses.  Your HOMEOWNER’s policy will protect you if someone says that YOU did something wrong, or negligent, and damaged their person or property!
  • Carry a pen and paper. You may need to exchange information with other people at the accident. Get names and numbers of as many witnesses as possible in case they leave the area before the police arrive.

Rear End Collision - smaller

IF YOU ARE IN A BIKE CRASH…

  • Don’t Move. Many of my clients want to jump up and check on their bikes right away.  Don’t do it.  Just lie there and do a self-assessment.  Have you lost consciousness?  Can you feel/move your arms and legs?  Are you bleeding?  Do you have pain?  Sharp pain? Shooting pain? Be able to describe how you are feeling to paramedics and EMT’s who will arrive.
  • Call the POLICE at 911. Always wait for the police to respond to the accident scene so that an official report will be filed. Do not let anyone talk you out of calling the police.  Many times cyclists do not realize that they have been injured until several hours after the accident. By then, it may be too late to identify the at-fault driver or properly document the crash. Many drivers who cause accidents will initially apologize and accept blame for the accident at the scene, but later, after they have time to consider the ramifications, will deny that they were negligent. This is particularly true in bicycle crashes.  The police accident report will include the driver’s statements as well as all other witness statements.
  • Seek medical attention. Riders tend to be very self sufficient and tough.  Many will try to turn down offers of medical attention.  DON’T DO IT.  Accept help this time.  Let the EMT’s treat you.  This is proof that you were, in fact, injured and the medical records generated by the medical provider will help establish the extent of your injuries.
  • Take Photos.  Take several photos from different angles and lighting of your injuries as soon as possible after the accident.  You can’t have too many photos.  Photograph the scene, the bike, the other vehicle or dog, your wounds.  The grosser and yuckier the better!
  • Keep a Journal. Keep a journal (injury diary) of your physical symptoms starting immediately after the accident and make entries every day.

journal 2

  • Don’t fix your bike right away. Riders tend to be tinkers and self sufficient.  They want to get back to RIDING and get the bike fixed quickly.  You need to keep your bike and clothing in the condition that it was in after the accident.  Get the property damage assessed by an expert.  Get a report of the damage AND of the “value” of the bike.  Under Ohio law, your property damage recovery cannot be greater than the value of the bike.  Thus, if an insurer says your used bike was only worth $100.00, they will try to cap your property damage claim at $100.00!  Have a competent professional shop make an independent assessment of your bicycle and gear.
  • Stay Organized. Keep every single piece of paper relating to the crash, your injuries and your recovery organized.  You will need them either in handling the claim or when you meet with an attorney.
  • Call an Experienced Trial Lawyer. As an Ohio trial lawyer with 27+ years of experience handling serious injury and death claims, I know how complicated these things can be.  A crash can turn your life upside down as you try to get your bike fixed, get your medical bills paid and keep the collectors at bay.  Once hired, I take care of EVERYTHING related to your claim.  I handle all communications with the obnoxious insurance company, fully investigate the crash and obtain all documents needed to maximize your recovery.  I know what types of arguments insurers usually make in bike crashes and I know how to deal with them. Send me a note or call me TODAY for a FREE CONSULTATION about your crash!

I hope you never need to implement any of these tips, but it always helps to be prepared. Good Luck and Good Riding!

Steve Magas

The Bike Lawyer

9/12/2009 THE SANTA BAND IS COMING TONIGHT!! Ho Ho Ho!

Tonight, Thursday, November 12, will mark a new era in THE LAW in Cincinnati.  There will be PRE-SGBB and POST-SGBB. November 12 is the Cincinnati Bar Association’s 2009 “Bar Idol” Cincinnati Bar Foundation 50/50 Campaign Kick Off Party…

OK… so lawyers are wordy… does this surprise you?  Somebody was probably billing $400/hour to come up with that title…

The bottom line is that various lawyer MUSICAL groups will be competing for the “Bar Idol” award in front of a gallery of celebrity judges including none other than Cincinnati’s own BOOTSY COLLINS.

Bootsy

Included in the event are groups with some very catchy names -Attractive Nuisances… Chrissy Dunn… The Foster Grants… The Eric Steiden Quartet…

OK, so lawyers are not so hot at catchy names… does this surprise you??

But… the highlight of the evening… by far… will be the appearance of that wildest of bands…. a band that needs as many lawyer members as it can recruit… a daring band of middle-aged men and women who are not too proud to let it ALL hand out in their red Union Suits, white fur-trimmed shorts and other holiday “spirit” while marchng around playing whacked out arrangements of your holiday favorites… yes.. I’m talking about SANTA’S GOODY BAG BAND!

The Santa Band [SGBB] has been around for more than 25 years – raising money each year for Shriner’s Hospital by marching through bar after bar, restaurant after restaurant, accepting nothing but cash and free drinks while entertaining at Masses… er… not “at Masses” per se… rather entertaining “the masses” who frequent bars and restaurants – [come to think of it, these ARE one and the same….]   These marching band aficionados somehow find a company to rent thema big yellow school bus and drive around town each Christmas season and their annual foray into the world.

In 2009, it’s different… it’s ON.

Reacting to a challenge from the Bar Association, SGBB decided to form an early regiment and try to WIN THIS THING.  The band will be there, in force, on Novembe 12 – and so will I. [And this ringing endorsement of the band has NO relationship whatsoever to the plug the band gives my firm on its “links” page… which you can see here]

Your trumpet playing scrivener will be in his SGBB finest – I traded in my elf costume [see far left in the pic below]  for some white fur tonight and will be appearing at The Blue Wisp this Thursday with the Santa Band… wailing away with the good boys and girls with the hope of becoming a Cincinnati Bar Association IDOL!

You gotta PAY to PLAY – so to speak…. so come out and VOTE for THE SANTA BAND by paying a buck, or more, to our celebrity judges!

wow… what a good looking group…

Santa Band


Cool BIKE ART

Check out the very cool Bicycle Art done by Taliah Lempert in New York City.  Her Bicycle Paintings website displays her original “bike art” as well as lots of cool stuff you can buy if you don’t have several hundred bucks to spend on original bike art!    She paints BIKES.  Not fancy, high end, techno bikes carved out of a solid block of UnObtainium, but bikes of real people.  Some very cool stuff there… see below!

Talia Lambert Painting

You can also find some of her stuff at the Bicycle Gifts Webpage, such as prints, cards, etc.  An interesting quote from this page tells you about the artist…

“Painting pictures of bicycles satisfies what I want to say. Structurally they’re beautiful and symbolically very positive. I love how a bicycle relates to the figure and I love exploring what each is specifically to the person who rides them. Many of the bikes I paint are used daily for transportation and/or for racing, some are necessary for the owner’s career. They are worn and customized in unique ways, being at once a specific bike and a collective symbol of empowerment.”

CHECK IT OUT!

Lembert Painting 2

11/11/2009 Veteran’s Day

Today is Veteran’s Day.  A day to remember.  A day to thank these guys – from the privates to the generals – for what they do, day after day, and what they’ve done and sacrificed.

Back when my dad was enlisting in the Navy three of his older brothers were already serving in World War II.  Dad’s younger brother followed him into the service – making the Magas family a “Five Star” family – five young men all in the service at one time.  That was big enough news to make the The Cleveland Press!

I understand that John Magas, Al Magas and George Magas all saw some pretty heavy action.  My dad, Lenny Magas, and his younger brother got placed in San Diego and The Bahamas, respectively, so a decidedly different military experience than their older brothers!

For me, I’ll never take this service for granted.  I’m thankful for what they do.  I’m thankful all five Magas Boys came back from WWII and went on to live productive lives in the Cleveland area.

Here’s a shot of my dad, Len Magas, from his early Navy days!

Dad in the Navy!

THE MOST DANGEROUS PLACE TO RIDE?

BIKE LAW 101 – NUMBER CRUNCHING

NHTSA is all about numbers.  They can crunch numbers like nobody’s business.  If you go here you download some numbers – NHTSA’s 2007 “Traffic Safety Facts” about “Bicyclists and other Cyclists.”

As a lawyer with a math degree, I don’t run away from numbers – I LOVE ‘EM!  But I also try to look realistically behind the numbers to see what they mean.  I can also provide some insight as a trial lawyer who has had the opportunity to work with some outstanding accident reconstruction experts to try to piece together the How and Why of crashes.

The NHTSA numbers show a state by state breakdown of fatal cycling crashes in 2007. There were 698 cycling deaths in the U.S. in 2007 according to NHTSA and a total of 41,059 traffic fatalities.  Cyclists accounted for 1.7% of all killed on U.S. roadways in 2007.

The states with the highest number of cycling fatalities for 2007 are consistently the states with the highest number of cycling fatalities year after year.  They are generally “clustered” as they are in 2007 as follows:

1.  FLORIDA [119]
2. CALIFORNIA [109]

Then a cluster of lower numbers:
3. NEW YORK [51]
4. TEXAS [48]

These four states accounted for 327 of the 698 cycling fatalities in 2007 – or 47%!  Curiously, 3 of the big 4 also led the way in Total Traffic Fatalities.  Can you guess which 3?

Well, CA was first [3974], followed by Texas [3363] and Florida [3214].  New York [1333] was in a cluster of states with 1000-1500 deaths including AZ [1066], AL [1110], GA[1641], IL [1249], MI [1088], NC [1675], OH [1257], PA [1491], SC [1066], TN [1210], and WA [1027].

What is it about New York that makes it so much more dangerous for cyclists but not so much for motorists?  Well, my unresearched view would be that big cities are more dangerous for cyclists than motorists.  A 20 mph collision between two 4000 pound vehicles is unlikely to kill either vehicle operator.  A 20 mph collision between a car and bike is far more likely to kill the bicycle operator.  New York City is a unique breeding ground for low speed crashes, aggressive cyclists and frustrated motorists.  It’s not surprising to me that the cycling deaths are high while the overall number of traffic fatalities is consistent with other midwestern states.

After The Big Four, another cluster of four states appears.

LA [22],  AZ [21], PA[20], SC [20]

So now, 8 states account for almost 60% of all bicycle fatalities.  The other 42 states account for the remaining 40%.

The next cluster is states with 15-20 fatalities.  These include:

IL [18], NC [18], OH [17], MI [17], GA [16], IN [15].

For “safe” states, I guess you go to Delaware, North or South Dakota, Vermont or Wyoming – each had NO cycling fatalities in 2007.  Alaska, Washington D.C., Maine, Nebraska, Rhode Island and West Virginia each had 1 death.

Conclusions?  I’m not there yet, but the numbers are interesting.  To me, they say that cycling on the roadway is FAR MORE SAFE than “people” think, especially if you avoid The Big Four.  It would be interesting to look further into the numbers for The Big Four and see if there are trends pointing towards a disproportionately high number of cycling fatalities in the urban vs. rural areas.

Good Luck and Good Riding

Hanging Up The Car

THE MAGAS FIRM IS CLOSED TODAY 11/5/2009

The Magas Firm will be closed on 11/5/2009 to take time to remember my son, Andrew Hunter Magas, who died a year ago.  Andrew was a wonderful, caring, loving young man.  He was just 19 years old and had voted for the first time in the Presidential election on 11/4.  He was living on his own and trying life as an adult on for size.  His tragic and sudden death reminds me every day how important it is to tell those you love how much you love them and to appreciate how lucky you are to have them!  Andrew was a sweet, beautiful boy who lit up more lives than he ever knew.  We all miss him very much and we’re taking the day away from “work” today to remember…

Andrew was studying Photography at Antonelli College in downtown Cincinnati.  I think the photo below is a self-portrait… it is one of my favorite recent photos and really shows his spirit and creativity.

ANDREW Portrait

Dr.Thompson CONVICTED in CA Road Rage Case

Velo News is reporting that Dr. Christopher Thompson was CONVICTED of assauling cyclists in a California Road Rage case.

You can read the story here. It is reprinted below.

This case represents a significant victory for cyclists.  The case was aggressively defended by a well funded defense team.  The defense suggested, through expert testimony, that bicycles are inherently unstable and that the victims may have simply fallen off their bikes due to their own inability to stay upright and not due to something the good doctor did!  The defense argued vehemently that Dr. Thompson did nothing wrong and that the beligerent cyclists were to blame.

The charges stemmed from multiple incidents.  The jury returned a guilty verdict on all counts – six felony convictions and one misdemeanor.

Dr. Thompson’s lawyers asked the court to allow him to stay out of jail pending sentencing.  The prosecution objected arguing

– He was a flight risk with no ties to the area.
– He was likely to lose his medical license as a result of felony convictions

The prosescutor argued that there wasn’t a cyclist around who would feel safe if this guy was let out.  The judge agreed and ordered the bail revoked.  Dr. Thompson was handcuffed and taken to the holding cell.

Cases like this are rare, fortunately.  However, attacks, verbal and physical, by motorists are not.  The Prosecutors showed a lot of guts for pursuing such a high profile defendant and the victims have been dealing with this for more than 15 months.  NOBODY “wins” here.  These cases are incredibly taxing for the victims and their families.  The defense challenges the credibility of the victims, blames the victims and attacks the victims on the stand.  Clearly, these cyclists held up well and handled it well – not all people do.

I have not read of the progress of any civil suit – but I’m sure that is on the horizon.  Rarely do well-to-do, highly insured people do things like this.  This case, again, then, is a rarity.

In a high profile case I handled, a civil suit was filed against the murderer of a 15 year old boy.  We won a $3.5 million dollar verdict but only collected a little before the murderer committed suicide in prison.  There is no insurance coverage for “intentional” acts, however, which could limit the recovery in the CA road rage case.

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RearWindshield - CA Road Rage case

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FROM VELO NEWS

A Los Angeles Superior Court jury on Monday found Dr. Christopher Thomas Thompson guilty of assaulting cyclists by abruptly stopping his car in front of them on a hilly Los Angeles County road last year.

Thompson, a former emergency room doctor, was found guilty of six felonies and one misdemeanor and could face as much as five years in prison.

He was remanded and ordered held without bail until sentencing. He was handcuffed in the courtroom after the verdict was read.

Thompson was accused of assault with a deadly weapon, reckless driving causing specified bodily injury, battery with serious bodily injury and mayhem. The most serious charges stem from a July 4, 2008, incident on Mandeville Canyon Road, the road where Thompson lives, where he was accused of abruptly stopping his car in front of two cyclists. Other charges relate to a similar incident on the same road that did not result in injuries.

In the July 4 incident, the two cyclists hit the rear of Thompson’s car; one slammed through the rear window, the other catapulted over the car into the road. In the earlier incident, the cyclists said they narrowly avoided hitting the rear of Thompson’s car.

Thompson’s lawyer had argued that the cyclists were belligerent and may have fallen because of the inherent instability of bicycles. He suggested that in any case the incident was accidental, not criminal.

Please check back soon for a complete report.

CYCLING SAFER THAN EVER – NHTSA BIKE & MOTORCYCLE STATISTICS Back It Up!

WHAT DO THE NUMBERS MEAN?

Every year since 1993 NHTSA has published a series short papers outlining statistics for a variety of crashes.  These include

–  Bicycles

– Motorcycles

– Pedestrians

– Alcohol issues

– Large Trucks

– School Transportation

– Young Drivers

and more…. you cand find these papers and read them yourself here.

These “Traffic Safety Facts” put some numbers out there for folks to think about.  For example, the 2008 Data indicates that

– 53,000 cyclists have died in traffic crashes in the US since 1932.

– 332 cyclists died in 1932, which accounted for 1.3% of all traffic deaths that year.

– 716 died in 2008 – or roughly 2% of all traffic fatalities.

– 1003 died in 1975 – the worst year ever for bicycling fatalities.

– The 716 fatalities in 2008 was 6% LOWER than the 760 who died in 2007 and a almost THIRTY PERCENT less than the 1003 who died in 1975.

DRUNK CYCLING continues to be a problem, much to my amazement.  26% of the 716 cyclists killed in 2008 had blood alcohol levels at 0.08% or higher, making them legally “intoxicated” for DUI purposes.

What does this mean?

Smashed Bike Wheel - smaller

To me, it means that cyclng is SAFER THAN EVER. Bikes are outselling cars, but bike fatalities are going DOWN.  Further, the alcohol component, while baffling, tells me that serious cyclists are safer than ever.  No serious cyclist gets drunk and goes out for a ride.  My unresearched, seat-of-the-pants, before breakfast suspicion is that a close look at those drunk cyclist deaths would reveal that some/many of the drunk cyclists were once drunk MOTORISTS who changed their vehicle of choice, but not their habit of drinking and driving.

So, GO RIDE A BIKE folks… it’s safer today than ever before!

Steve Magas

The Bike Lawyer

MAGAS SPEAKS AT Ohio Traffic Engineers Conference

OTEC is the annual Conference for Ohio Traffic Engineers.  It’s a “big deal” at the Convention Center in Columbus each year as hundreds of traffic engineers, planning professionals, industry representatives, professors and others meet to watch experts present on a variety of topics.  Through the efforts of some concerned bike advocates, there was a half day of “Bike” stuff presented as one of the seminar/conference options for attendees.  I was asked to speak on “Bike Law” of all things.

Instead of speaking about legal research and cases and such dry mumbo jumbo stuff, I decided to speak about “UNDERSTANDING THE DNA of the CYCLING ADVOCATE.”  From this title, I argued that transportation professionals who had a role in deciding and planning and designing and implementing bike lanes, sharrows, bike trials and city bike plans, these people needed to know a bit about the “DNA” or make-up of those lycra-clad Bike Advocacy fanatics who have been screaming at them!

I was watching my dog get ready for a nap the other night.  As he prepared to lie down, he circled several times on the carpet.  Virtually every I’ve ever seen does this.  We had a brief discussion of why, and my contribution was the thought that buried deep in my pup’s DNA is some sort of reason for this.  Maybe dogs long ago had to mat down the tall grass and weed before tehy could comfortably lie down, or maybe they picked a spot inthe tall grass because it hid them well from predators.  Whatever the initial cause, the need to circle still exists in most dogs.

To take a look at what’s in the DNA of a Cycling Advocate, I begin with a story about a car crash. The crash happened on Memorial Day in New York City.  Tens of thousands of people were riding their bikes.  We were in the middle of a Bike Boom & bikes were everywhere.  Cosmopolitan magazine was sponsoring a car race through the city streets.  During the race a driver, Henry Wells,  lost control, zigzagged around and ran into a vehicle operated by Ms. Evelyn Thomas.  Mr. Wells was arrested by police as Ms. Thomas was rushed to a local hospital where she was diagnosed with a leg fracture…

A Ho Hum story, you say… well, perhaps but I left out 3 key points…

1.  The crash occurred on Memorial Day in 1896!

2.  This was the FIRST recorded vehicle crash in the U.S.

3.  Ms. Evelyn Thomas’s vehicle of choice was a “Columbia” – one of the finest bicycles available at the time~!

In 1896, “The Law” had not caught up with technology.  In fact, there were no laws governing “motor cars.”  However, New York’s courts decided and held that a bicycle was a “vehicle” and the operator had to follow vehicle rules.  The New York Times said, in an 1896 editorial, that”…since bicycles had been declared by the courts, they should be declared by statute entitled to the privileges and subje t to the duties of wheeled traffic.”  Later, New York’s first Vehicle Code was written and included in the definition of a “vehicle” was a “bicycle.”

Ms. Thomas’s First Crash, and the work of the courts and legislature recognizing the right of a person to operate a bicycle on the roadway all comprises a section of the DNA of a Cycling Advocate.  These historical victories instill an inherent sense of BELONGING on the roadway.

This Vehicle Code, and paving of the country’s roads, was the high point of the  “Good Roads Movement” in the U.S.

The Good Roads Movement is another strand of the Cycling Advocate’s DNA.  You can check out a wiki article here.  The Good Roads Movement began when cyclists by the hundreds of thousands banded together to a common and easily definable goal – Good Roads, Paved Roads.  Again, this occurred in the 1880’s or so.  “Roads” at that point were little more than a mucky, rutted mess made by horses and wagons.  To RIDE one needed smooth, paved roads.  As noted above, we were in the midst of a Bike BOOM and people were ready to ride!

The Good Roads Movement was an odd assortment of advocacy bedfellows – cyclists, farmers, politicians. But they had CLOUT.  The League of American Wheelmen was founded and soon had a Million Member Mailing List for its Good Roads publications!  If you wanted to get elected in many parts of the country you had to talk to the Good Roads people and make it happen!

Roads started getting paved, which led to improved commerce as it was easier to get products to move around the country.  The successes of the Good Roads Movement led to the adoption of “bicycles” as part of the “Vehicle” definitions of many states vehicle codes.

If you want

This, too, is a strong strand of the DNA of the Cycling Advocate.

MORE ROAD RAGE NEWS – Can a Powerful Canadian Lawyer “Spin” the Death of a Bike Messenger?

Bob Mionske wrote a great piece on a crazy road rage incident on his blog at Bicycling magazine which he reprinted on his  BicycleLaw.com blog.  The incident was captured on film and has been thousands of times, including an annotated version on You Tube here or  here. Security cameras captured the incident.  Bob’s article discusses the disparity of the parties and the “spin” which the rich and powerful have the ability to create…

You Be The Judge

Steve Magas
The Bike Lawyer

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A swift public relations campaign couldn’t save a successful Canadian lawyer from the fact that he ran down and killed a bike messenger.

By Bob Mionske

He was Metis, one of the officially recognized aboriginal peoples of Canada. The oldest of eight children, at the age of six he had been adopted by a foster family, together with his four-year old brother, as their mother struggled with an alcohol addiction. “We just grew up with poverty, with nothing,” his younger brother, now serving time for drug trafficking at Stony Mountain Prison, near Winnipeg, noted. “We probably had one of the hardest lives growing up. A lot of foster homes. Broken-down families.” As a young man, the older of the two brothers had gotten into trouble with the law over some bad checks, and had left his home town for a new life in Toronto, where he struggled with his own addiction to alcohol. For a time, he was living on the streets, homeless, but for the past several years the avid cyclist had worked as a bicycle courier.

A province away, another boy, 10 years his senior, was growing up. It might as well have been a world away. This boy’s father had been a mayor, and when he grew into adulthood, he also would take up the mantle of public service, exceeding his father’s own accomplishments. But first, there was university, where he earned his Bachelor’s Degree, and then a Master’s Degree. Afterward, he entered law school and after completing his law degree he continued his legal studies at Harvard Law School, where he earned an advanced law degree, graduating magna cum laude. Following law school, he clerked at the Supreme Court of Canada, before accepting positions with two of the largest and most prestigious law firms in New York and Canada. A Fullbright Fellow, this brilliant man also taught law while in private practice, first at the University of London, and later, at the University of Toronto. He entered politics with his election to the Ontario Legislature, and later served in cabinet posts, first as Attorney General, and subsequently as Minister of Aboriginal Affairs, and Minister of Economic Development. In May of this year, he resigned his cabinet position, to take a position as CEO of Invest Toronto, but it was widely believed that it was only a matter of time before he would become Ontario’s Premier. And beyond that?

Darcy Allan Sheppard and Michael Bryant came from different worlds, but when they met in the heart of the posh shopping district on Toronto’s Bloor Street, their worlds violently collided. In the wake of that collision, one life ended, and another lay in ruins. On the night of August 31, Sheppard—the Toronto bike messenger—and Bryant—the Toronto politician—both on their way home, became involved in a minor traffic dispute that quickly escalated into a violent incident of road rage, and within moments, Sheppard lay mortally injured on Bloor Street. Within hours, Bryant faced charges of criminal negligence causing death and dangerous operation of a motor vehicle causing death.

When serious charges have been laid, all but the most indigent will hire a criminal defense attorney to represent them. Michael Bryant was no exception; it was soon announced that he had retained Marie Henein, one of Toronto’s best criminal defense lawyers, with a well-deserved reputation as “a formidable opponent” who is “razor sharp” and “a lawyer’s lawyer.” Henein wasn’t Bryant’s only hire, however—the morning following Sheppard’s death, it was revealed that Bryant was being represented by the Toronto PR firm Navigator Ltd., which, among its other services, specializes in “CEO Reputation Building” and “Crisis Communications.” After being released on his own recognizance that morning, Bryant went before the cameras to offer his “deepest condolences” to Sheppard’s family, in a page straight out of the textbook of crisis management.

Immediately following this initial foray into rebuilding Bryant’s reputation, Navigator set to work disseminating Bryant’s spin on the incident. Bryant’s Facebook page received a makeover, with links to his press statement posted on his wall, and his candid profile photo replaced with an earnest, professional headshot. A blog and twitter account were set up “to quickly correct inaccuracies with factual responses,” with the posts reportedly focusing on responding to “what others have written and posted on twitter and youtube.”

This emphasis on spin control was not met without some criticism:

When a news story says, “We have new information from a source …” is that source Navigator? Or someone egged on by Navigator? We won’t know because Navigator “prefers to be inconspicuous.” Reporters talking to them have to agree that everything is off the record. Why?

Commenting on the ambiguous blurring between news and spin, one Toronto criminal lawyer said, “Look, the headline on this story should be: ‘Navigator, changing your perceptions without you even knowing it.’ ”

Responding to questions regarding his company’s work for Bryant, Navigator spokesperson Dan Robertson offered a defense: “From day one, there has been speculation, innuendo and rumor. It is perfectly fair to insist on accuracy, especially at a time when Mr. Bryant is not able to publicly tell his side of the story.” Ironically, Navigator could have been describing the man their client was charged with killing; if anybody in this incident was “not able to publicly tell his side of the story,” it was Sheppard, who now lay dead as speculation, innuendo and rumor about him replaced facts about the clash that led to his death. Within 48 hours of Sheppard’s death, the initial shock of the story would give way to a tidal wave of negative news stories about what was termed Sheppard’s “darker side”:

  • On September 2, Toronto police announced that they were investigating whether Sheppard had grabbed the driver, or his wheel, “to confirm the accuracy of witness accounts that have suggested the cyclist may have been trying to get Bryant into a headlock and that the two may have been wrestling for control of the wheel.”
  • In the same September 2 article, police reported that Sheppard had been involved in a dispute—described as “a noise complaint or a domestic dispute”—with his girlfriend earlier in the evening, and that “police intervention was required.” Sheppard was also reported to have consumed alcohol; one neighbor described him as being “drunk as a clunk,” while a fellow messenger said he “might have had one,” but “It didn’t constitute any unruly behavior.” On the scene, police decided to allow Sheppard to continue on his way, after concluding that, “he appeared to have been drinking but was not drunk and posed no threat to anyone.” Following his death, however, police announced that they were waiting for a toxicology report on Sheppard. They did not scrutinize the driver as carefully. Stating that “there was no reason to ask Bryant for a breathalyzer,” police reported that Bryant had not been drinking. The obvious next question—was the driver under the influence of other substances?—will forever remain an unknown.
  • Also appearing on September 2 was a separate news article detailing Sheppard’s past run-ins with the law in his hometown of Edmonton; there were 56 counts against him, charging Sheppard with “possession of stolen property, fraud and uttering a forged document, all under $5,000.” The charges stemmed from allegations that Sheppard had stolen 17 checks from the Canadian Multicultural Society in 2002, made them payable to himself, and forged the signatures. He was released on bail in 2003, fled Edmonton, and never returned.
  • September 3, descriptions of Sheppard as a man “admired by his co-workers for his charisma and adored by his family and friends for his comedy” were countered by complaints from neighbors, who said he “drank often and would have loud parties with his cyclist friends.”
  • September 3, in an editorial with the giveaway title “Michael Bryant and self-Defence,” the Ottawa Citizen suggested that “investigators were too quick to charge Bryant,” proffering that “maybe it wasn’t ‘criminal negligence’ on Bryant’s part that caused the tragedy.” Dismissing the initial reports of a verbal argument between Bryant and Sheppard, the paper instead raised the specter of anonymous “reports that Sheppard tried to commandeer the vehicle, reaching in to grab the wheel and attacking the driver,” opining that “if this was, for all intents and purposes, a kind of car-jacking, then it’s hard to blame the driver for flooring it.” After implying that Bryant had been “terrified” by Sheppard, the paper again posited Bryant as the victim, noting that “In any event, Bryant will have his day in court and it is almost certain that self-defense will feature prominently.” The editorial concluded that “Bryant seems pretty certain that he is innocent of the accusations and, if true, he should be allowed to have his life back”—a conclusion that somehow missed the obvious irony that Sheppard would never have his life back.
  • September 4, in another editorial, the Toronto Sun also proffered the suggestion that Bryant was the victim, rather than the aggressor, posing the question “Finally, ask yourself what you would have done if you were in a car with your spouse, with the top down, and someone was attacking you?”

So that was the spin. Why do I think it’s spin? Because details about Sheppard’s ancient run-ins with the law over stolen checks had nothing to do with what happened the night of his death. Neither did stories about noise complaints from neighbors, or his problems with alcohol. And perhaps most important, neither did invented “questions” about road-raging cyclists and terrified drivers. But they had everything to do with shaping public opinion, turning the public against Sheppard, and in support of Bryant. The story shifted from the factual “cyclist run down by road-raging driver” to the fanciful “terrified driver attempts to flee angry, drunken criminal.”

So to set the record straight, here’s what really happened.

The night of August 31, Darcy Allan Sheppard was on his bike on Bloor Street, riding home from his fiancee’s apartment. It was 9:45 p.m. As he approached a traffic light, he passed to the left of a Saab convertible that we now know was Michael Bryant’s. After passing Bryant, who was stopped at the light, Sheppard cut in front of his car and also came to a stop. Shortly thereafter, as the light turned green, Bryant drove forward, perhaps bumping Sheppard’s wheel. Sheppard turned his head back, in Bryant’s direction. Witnesses reported that when the light turned green, there was a toot of the horn from Bryant, and a shout to “get moving,” followed—perhaps—by a return shout from Sheppard. Then, incredibly, Bryant hit the gas, pushing Sheppard forward into the intersection, knocking him off his bike. As Sheppard struggled to get to his feet, Bryant backed up, stopped, turned his wheel and began to drive past Sheppard as he sped away.

Sheppard gave chase, grabbing onto Bryant’s car as it sped by. Witnesses reported hearing shouting, and noted that Bryant was “very, very angry.” They also reported that as Bryant sped down the street with Sheppard clinging to his car, he was driving on the wrong side of the street, at about 60 miles per hour, driving up onto the sidewalk, driving against the trees and posts and newspaper boxes lining the street in what they reported appeared to be an attempt to brush Sheppard off his car. Down the street 100 yards, Sheppard was slammed into a mail collection box, and crumpled into a heap in the street as Bryant’s rear wheels ran over him. Witnesses reported that Sheppard, who lay in the street bleeding heavily from his nose and mouth, attempted to get up, but was advised to remain still until an ambulance arrived. Bryant continued driving down the street to the end of the block, before turning in to the driveway of a luxury hotel, where he finally stopped his car.

This is not spin. It is not supposition. It is not rumor. It is fact. We know this, because remarkably, the incident was captured on security cameras, which corroborated the eyewitness accounts. Anonymous spin doctors can suggest news leads and story angles to divert media and public attention, and anonymous internet comments can invent fantasy versions of what actually happened, but the camera doesn’t lie.

And the camera shows that on the night of August 31, Michael Bryant used his car to ram Darcy Sheppard out of his way, before fleeing the scene as Sheppard gave chase on foot. Moments later, Darcy Allan Sheppard lay dying on a Toronto street as Michael Bryant sped away.

(Research and drafting provided by Rick Bernardi, J.D.)