Steve Magas is Ohio's Bike Lawyer. He has written about Ohio Bike Laws, bike crashes, bicycle advocacy and court cases for some 30 years. Soon we'll be adding a series of features about your favorite Ohio bike shops.
I have written, and spoken, a LOT about insurance. Why YOU should have it – what kind you should get – what should you watch out for – What sorts of insurance can HELP cyclists if they get into a crash with a motor vehicle. How does your Insurance play into your view of JUSTICE?
I was downtown today, a rarity in this day and age of Zoom calls with judges. I was downtown to support a client who was hit by a car. The client was a regular bike commuter. On his pre-sunrise morning ride he was, as always, well lit up with reflective gear and bright, operating, “legal” front/rear lighting. He was on a main road waiting to make a left turn so he was well into the lane when a car came up from behind and just slammed into him.
The motorist appeared to just… keep going … a bit before she finally stopped… a few hundred feet down the road. There were two key witnesses – one was directly behind the offending motorist and one was ahead, waiting to pull out of a side street. When the client was struck, bike parts flew in the air and landed on the next car, the witness behind’s car. The witness ahead saw the crash play out and was shocked when the lady kept going… When he spoke with the motorist she seemed to have no CLUE about what had just happened
Eazy/Peazy Slam Dunk right? Well… you’d THINK… but… Justice can be slow… and hard to come by…
THE KING CAN DO NO WRONG We’ve been working on a couple briefs in a big case here at the BikeLawyer’s World HQ. Chris Carville, the KY BikeLawyer, and I represent a fellow who was hurt by a “traffic control device” – a gate next to a roadway – which was able to be moved into the roadway due to its deteriorated condition – we sued the city & a park district.
Suing a city or county or trail or park district is never easy. The general rule of yore was “The King Can Do No Wrong”
SCHLEGEL v. SWEENEY– the Bike Trail Appropriation case – was released by the Ohio Supreme Court this morning… and… it’s complicated… and … it’s not over… and it’s subject to more litigation… and more appeals… but, as of today, the Park District gets to move forward in its bid to acquire land for a bike trail in Mahoning County.
I’ve written about this case in the past… it’s… complicated… but the bottom line, as of today’s very rare 7-0 Ohio Supreme Court decision, is that the “appropriation case” filed by the Mill Creek Metropolitan Park District against a land owner to acquire property to build a bike trail may progress. The case is not over, however, and provides some lessons in power & tenacity.
“Appropriation” is a means for government entities to take property from private citizens for government purposes. Based on the power of “eminent domain,” this allows the government to obtain private property it needs for public projects and requires the government to pay Fair Market Value for the property. For example, let’s say the government wants to widen a road, add lanes … and it doesn’t have enough room to do that… it can try to negotiate a deal with all the landowners to buy enough land…or it can file an appropriation action to take it.
You may think this is crazy- the government taking your property…but… This power of eminent domain is found in both the Ohio Constitution and the US Constitution.
Wait, say WHAT?
Yep and the place where it is found is somewhat surprising… You know that 5th Amendment we hear so much about? Miranda Warnings… Taking the 5th… the right of someone charged with a crime to not be forced to talk? Well, if you read the ENTIRE 5th Amendment it does on to say “…nor shall private property be taken for public use, without just compensation….”
The writers of the Constitution were not going to allow the government to simply TAKE your property – it could only be taken for a “public use” and the government has to pay “just compensation.”
The Ohio Constitution is similar: “Private property shall ever be held inviolate, but subservient to the public welfare.”
The Ohio Constitution talks about “public roads” but has a more general catch-all clause that applies “…in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”
So, bottom line, the government can take your property for public use- but has to pay fair/just compensation to you.
If you’ve worked or attended any of the talks I’ve given or BikeLaw 101 Continuing Legal Ed classes I’ve given, or possibly just run into me on the street you’ve probably heard me prattle on about SUBROGATION.
A few weeks ago I posted a story about State Farm suing Rad Bikes over a house that burned down and many folks had …questions… about this… How can State Farm sue Rad? Don’t you have to be the actual injured party to go after someone for damages? I thought Insurance Companies were generally NOT the party…”
It’s all about “SUBROGATION” folks…
Subrogation is fancy legal word that most people have never heard of but which permeates almost every single case we handle where a rider is hurt, or where a cyclist’s bike is destroyed.
So what is SUBROGATION?
It’s basically a devilish clause of your insurance contract that gives your insurer the righti to take the money you pay in premiums … and then stand in line with its hand out, expecting you to give the insurer a big part of your personal injury settlement…
The past two years have been AWFUL in Ohio as far as traffic safety – especially for the most vulnerable roadway users- cyclists & pedestrians.
In 2020, nobody was driving – the pandemic was in full swing – workers were home – there was no place to go – and yet, despite billions of fewer miles traveled, cyclists were mowed down by cars at an alarming pace. There were 20 fatal crashes in Ohio in 2020.
Ohio had a horrific TWENTY-EIGHT cyclists killed in 2021, a “record.”
In 2022, so far, we have had only 5 deaths from January 1 – July 31. These are summarized below. However, this is not unusual. We typically have a few fatalities leading up to the time school is out and summer arrives and then peak riding season starts. We tend to see a cluster of fatalities through the summer and again in September, when darkness comes earlier but the weather remains fantastic for riding. September is also the time of year when the sun is in its most “East/West” position so the sunrise and sunset present the most significant danger on Ohio’s East/West roads…
Nationally, IIHS reports that 932 cyclists were killed in 2020 – a 9% INCREASE over 2019, when EVERYBODY was driving.
No passing. What does that mean? In Ohio we have double yellow lines – these generally forbid passing but… in 2006 we were able to get an amendment to the law that allows motorists to across a double yellow if conditions are ripe. That change was meant to help motorists, and benefit cyclists, particularly on windy country roads with miles of double yellow. The 2006 changes codified what smart motorists did – they waited, made sure passing was safe and then passed quickly, without exceeding the speed limit.
While this change is not widely known, there’s another section of the Ohio Revised Code that is almost invisible – we have two cases pending now and, Monday night, another rider was hit…and killed… the same way… by a motorist choosing to pass a cyclist, illegally, within 100 feet of an intersection.
Ohio Revised Code Section 4511.30:
It’s the third rule that catches drivers – No vehicle may be driven “…upon the left side of the roadway… when approaching within one hundred feet of or traversing any intersection…”
In our two pending cases the insurance company for the motorist has chosen to fight – and ignore the law that bans their driver from passing within the intersection. Both cases are in litigation. One has motions being argued Thursday, the other was filed late last week along with a motion for a temporary restraining order to prevent the insurer from “fixing” the car until we can download the “black box” data which may provide evidence of speed, braking and the like.
In Monday’s crash a 70 yr old man was apparently operating an “electric bicycle” [according to one media report] southbound on Franklin-Madison Road and while he was making a left turn into his own driveway a motorist tried to pass him and slammed into him, killing him.
We don’t know details. We don’t precisely which driveway he was turning into or how far he was from the something unique intersections. As you proceed south on Franklin-Madison you encounter traffic entering from your left at Chamberlin and then some feet farther up there is traffic entering from your right at Keister
As with every fatal bike crash in Ohio we are going to be investigating this case thoroughly – obtaining all possible public records and putting our own review of what happened and why out there.
For now our thoughts and prayers are with the family of the still unnamed 70 yr old cyclist.
2021 was an absolutely awful year for cyclists riding on the road in Ohio and around the country. While riding in Ohio remains “safe,” especially when compared to other large states, the recent trend of increasing numbers of fatalities continued.
I see article after article in the media stating the same fact in many jurisdictions… Speeds are UP… Crashes are UP… Deaths are UP
Deaths were UP in big states and small – Ohio, Kentucky, Florida, California… You can read about it here and here and here and here and here.
In Ohio the DOT reports that 2021 was the deadliest year EVER on the roads
There were TWENTY-EIGHT cyclists killed on Ohio’s roads in 2021, making 2021 the deadliest year ever for cyclists as well.
Ohio has averaged 17-18 cycling deaths annually for many years. That started to tick up slowly around 2010, but that last few years have really been devastating.
In the 21 years from 1994 to 2015 Ohio had 366 cyclists killed – an average of 17.4 per year. In 2015 we saw a high of 26 and since 2015 we have seen a consistent rise in deaths with 22 cyclists killed in 2018, 23 in 2019 and an almost inexplicable 21 cycling deaths in 2020, when actual driving miles were down significantly!
The 28 CYCLIST deaths in 2021 represent the worst year we have seen.
Dogs- Dogs are said to be Man’s Best Friend I’ll grant you all that much It’s just hard for me to call him “Pal” While he has my calf for Lunch…
One of the very first “bike law” pieces I wrote, back in the 1980s [written by candlelight on parchment with quill pen as I recall] was about Ohio’s DOG laws. A few things have changed since then… like this funky new-fangled FAX gizmo… but Ohio’s dog laws remain STRONG, especially when applied to situations in which a cyclist encounters a loose dog on the road – the cyclist WINS… period.
Ohio’s Dog Laws Ohio law has a “strict liability” standard… that means you only have to prove the dog was out, and caused injury, and you win.
You do NOT have to prove “negligence” by the owner- to the contrary, the owner could be completely NOT negligent… using the strongest chain, the best state-of-the-art containment system…doesn’t matter… if the dog gets out and causes Mayhem, the owner is liable.
I posted an “Ad” on Facebook. It was about the new KY & OH Bike Law cards and was seen by a few hundred people… cost about $35 or so. One thing about a Facebook ad is that you are basically inviting people to come to your page and leave their thoughts…
This dude left this thought:
How do people message you if they are dead! It’s not a motorized vehicle, no drivers license or insurance needed to be on the road ways, and you don’t have registration?!? The spandex wearing pedo riders need to just stay off the roads, why would you chance riding up against a semi or 3/4 ton truck who might make an accident and just run you right tf over?!? Wait but you have your go pro and your safe zones!
Hit & Run crashes are an epidemic in the U.S. In 2016 there were 1980 fatal hit/skip crashes resulting in 2049 fatalities. This was the highest number recorded since NHTSA began tracking the data in the 1970s. Of those, 1398 crashes involved NON-VEHICLE OCCUPANTS such as pedestrians & bicyclists. The AAA Foundation for Traffic Safety released its “Research Brief” noting that while there were more hit/run crashes in larger states, when you looked at rates relative to population you find that New Mexico, Louisiana, and Florida lead the league.
Pedestrians and bicycle operators obviously present the hit/run motorist with a slim likelihood that damage to the hit/run vehicle will be significant enough to avoid a getaway.
Last weekend in Ohio we had TWO cyclists killed by hit/run motorists.
In Richland County, the man alleged to be driving the truck that struck & killed 13 yr old Luke Newswanger has been arrested. The crash happened at 9:30 am on Sunday morning. The truck allegedly driven by Bud Thornberry was going in the same direction and struck Luke from behind before driving off.
In College Hill, near Cincinnati, however, a hit/run killer is still on the loose.