The Law Offices of James M. Freeman, P.C.

Mary Wisniewski authored an article for Reuters on Rahm Emanuel's plans to expand bicycle infrastructure in the City of Chicago.  She interviewed me in preparation for this article and ended up quoting me on my pro-enforcement stance.

Interestingly enough, when she called to get an opinion from me for the article she started by asking if I thought Chicago might experience some of the same anti-cycling backlash New York cyclists are dealing with in light of Emanuel's plan to rapidly expand bicycling infrastructure in Chicago.  I indicated that tensions between cyclists and other users of Chicago's roadways are already chronic.

I tried to explain that tensions between cyclists, pedestrians and drivers already exist in Chicago, and to think we're not seeing the same backlash that New Yorkers are feeling is an illusion.  Just because there isn't a high profile lawsuit brought to prevent installation of bicycle infrastructure doesn't mean anti bicycle biases aren't hindering our ability to get more cycling infrastructure and legislation through.

If we want to see expansion of cycling infrastructure we need to hold bicycling out as a civilized and legitimate form of transportation.  In Chicago, that isn't happening, and I believe it is largely due to the absence of meaningful enforcement of traffic laws as to cyclists.

I have long postulated that based on my experience and observations, helmet use does not preclude a head injury.  In my experience, regardless of helmet use, the single biggest predictor of injury resulting from an accident is the speed of the vehicle.  I was recently talking about this theory to a client who happens to be a science teacher.  He suggested that the science of kinetic energy supports my hypothesis.  He tipped me off to the formula for kineic energy.

Kinetic energy = mv²/2

Kinetic energy is affected by both speed and mass.  According to my science teacher client, kinetic energy is determined by multiplying the mass of a given object by it's velocity squared.  The point is this, mass is a constant that basically increases in a linear fashion as the amount of mass is increased in the formula.  Speed, on the other hand, is not simply multiplied in the equation, it is squared.  Speed increases make exponential differences in the amount of kinetic energy.  If you double the amount of mass in any given collision you double the energy, but if you double the speed you quadruple the energy in a collision. 

It is more dangerous to get hit by a Mack Truck than a Ford F-150 going the same speed, but if the Mack truck is only going 15 miles an hour you may just get punched and thrown out of the road.  If, on the other hand you are struck by a for F150 going 50 miles an hour, you are much more likely to be severely injured, not because of the differences in mass, but becuase of the differences in the speed involved.  In such collisions we often see bones crushed and destroyed, rather than clean breaks.  Head injuries bear the same results.  In my experience regardless of helmet use, if the car is going fast enough, you'll suffer a head injury if you strike your head.

Now just to be clear, I'm not suggesting people stop wearing helmets, in fact, I'm a huge advocate of helmet use, and in low speed impacts I think they often make the difference between walking away and being carried away, so don't stop wearing a helmet.  In the city, bicycle/pedestrian accidents are often relatively low speed (the car is not usually going in excess of 30-35 miles per hour in my experience), so I would expect helmet use is extremely effective in reducing injuries in those accidents.  In the suburban areas or downstate, on roads where cars are traveling at speeds in excess of 50 miles an hour, helmet use is probably helpful, but much less effective at preventing injuries.

The single biggest factor to prevent being hit in the first place is to be conspicuous.  If they can see you they'll avoid you, so wear bright and contrasting clothing.  Make sure you have good lights, and you can never have too many reflectors.  First and foremost this will help you to avoid being hit, but also, in the event that you are hit, it will help to allow you when you try to get compensated from the driver for your injuries or damaged bicycle.  You want someone to look stupid when they try to tell the officer they didn't see you.  In an ideal situation the cop would raise his eyebrows and say, "You missed this guy/gal? In the bright orange vest with reflective piping and lights all over the place?  OK...  Here is your ticket."

Many messenger companies try to classify their messengers as independent contractors in order to avoid paying taxes and insurance on the employees, but that doesn’t mean that the messenger is, in fact, an independent contractor. With respect to my practice, this issue is most often hashed out after a messenger is injured on the job, and they are retying to recoup their lost wages and medical expenses.

The importance of the distinction between employee and independent contractor is important when a messenger is injured on the job because if the messenger is, in fact, and employee the messenger company is obligated to compensate the messenger under the provisions of the Illinois Workers’ compensation Act. The Workers’ Compensation Act was instituted to help both employees and employers. The Workers’ Compensation Act is a compromise for both sides. If an employee is injured on the job he/she is entitled to recovery for medical expenses, disability, and lost wages. In exchange, the employer’s liability is limited. The Workers’ Compensation Act sets out how much an employee is to be compensated for various injuries. The amount that the employee is able to recovery is fixed formulaically and limited, so the employer doesn’t have to worry about being driven into bankruptcy by a single bad accident. If the worker is an “independent contractor” the worker is considered to be self employed, so any company they “contract” with would not be liable for injuries under Illinois Workers’ Compensation law.

The Industrial commission considers each claim individually when making a determination of whether or not a worker is an employee or an independent contractor. Simply calling a worker an “independent contractor” doesn’t make him/her one. The Industrial commission will weigh several factors to make the final employment determination. Under the Illinois Supreme Court case Roberson v. Industrial Commission, the determination of “employee” or “independent contractor” status is a fact specific inquiry taking into account the, “totality of the circumstances.” Roberson v. Industrial Commission, 225 Ill.2d 159, at 174 (2007). Factors considered by the Roberson Court are:

• Whether the employer may control the manner in which the person performs the work
• Whether the employer dictates the person’s schedule,
• Whether the employer pays the person hourly,
• Whether the employer withholds income and social security taxes,
• Whether the employer may discharge the person at will,
• Whether the employer supplies the person with materials and equipment.

We have handled cases in which messengers have been declared employees despite numerous documents indicating the relationship to be that of an independent contractor. Never assume that you are an independent contractor just because your employer says you are. If you have questions about your employment status contact us.

This week we received the following e-mail from an apparent concerned pedestrian who witnessed a shocking and disappointing event:

I have found your website from the http://chicagobikelaw.blogspot.com/
website after trying to research bicycle laws online, and I wanted to ask you
a question regarding bicycle law and your opinion regarding something that
seems to be lacking from much of the literature I have found, the
responsibility of the bicyclist on the road.

I was witness this morning to a hit-and-run accident between a bicyclist and
pedestrian. This bicyclist was going the wrong way down a one-way street
(westbound on Lake Street, at Clark downtown) ran a red light, and struck a
female pedestrian who was crossing legally at her walk signal, knocking her
to the ground. He did not fall down, but instead kicked into high gear and
pedaled away rapidly before anyone could speak with him.

Having seen several similar incidents downtown, I have to question the laws
regarding bicyclists. Are bicycles not bound to some general traffic laws
in Chicago? I was under the impression they were, such as yielding the
right-of-way in the proper order, of following one-way signs, and most
especially obeying red lights in a crowded and high-traffic area.
Honestly, it's become annoying to see unpredictable behavior such as this in
traffic on an almost daily basis. How can vehicles predict someone
deliberately running a red light? How can pedestrians identify a hit-and-run
if they ride away after? If it was two cars colliding after one of them ran
a red light, it would be fairly clear who was in the wrong, but a car and
bicycle? Suddenly there are issues that can't be resolved, such as
red-light cameras not being sensitive enough to capture bicycles crossing
intersections. Also, the issue of identification becomes critical in these
cases. Motorcycles and cars have license plates, bicycles do not, despite
almost every bike I see having some kind of bracket, bag, light, or other
attached item that could easily display a license plate in the rear behind
the seat or on the fender.

These questions are not being asked to bash bicyclists, but to honestly find
answers to what I see as an increasing trend of irresponsible and selfish
behavior on the part of the bicycling community in Chicago.

     By and large bicycles are expected to adhere to the rules of the road as applied to motor vehicles.  There are some exceptions and inconsistencies, but red lights are no question.  In Illinois and Chicago bicycles are required to stop at a red light.  If a cyclist runs a red light and causes an accident as a result the cyclist may be responsible for any resultant injuries or property damage to all parties involved.

Cyclists often think that they pose no threat to pedestrians or other cars because a cyclist lack the overwhelming mass of an automobile.  In People v. Schaefer, 654 N.E.2d 267, 274 Ill.App.3d 450, 210 Ill.Dec. 968 (2nd Dist. 1995), a case in which Illinois Courts declined to extend DUI laws to human powered vehicles such as bicycles, the court seemed to rationalize their decision in part on their view that the threat of an intoxicated cyclist is "somewhat less imposing" that that of a drunk driver.

Having said that, pedestrian/bicycle collisions are dangerous, and can cause serious injuries.  The most common and severe injury caused by pedestrian/cyclist collisions is a head injury.  When pedestrians fall during collisions with bicycles they tend to hit their heads on the pavement causing concussions, skull fractures or other closed head injuries.  Old people, who may already be susceptible to injuries from falls, are especially vulnerable.

I agree that the events related by the above author are not only selfish, but shocking.  Vulnerable users such as bicyclists and pedestrians are typical victims of hit and run accidents in Chicago becuase they can't effectively pursue an automobile.  I have been told by insurance agents that motorcycle uninsured motorist coverage is more expensive than auto coverage because, "Drivers tend to flee after they put a motorcyclist down."  My experience is that drivers don't flee because of lack of insurance, rather they flee because of extenuating circumstances (drunk driving, drugs, outstanding warrant), or simply because they believe they can get away with leaving.

The above author's story reminds me of a similar incident I was party to many years ago when I was involved in a collision with a pedestrian.  After work one night I was crossing Wacker drive eastbound at Washington on a solid green light.  A pedestrian ran out into my path against a "Don't Walk" signal.  There was no other automobile traffic, so he must not have anticipated or seen me at first.  Initially this didn't present an obvious hazard to me since I had seen the pedestrian's path of travel and made an appropriate adjustment despite being fairly close to him when he left the curb.  Unfortunately, the pedestrian froze and jumped back when he saw me, landing square in my path.  Try as I might to avoid him I clipped his arm with my handlebars.  The impact was so slight that it didn't even phase him, but as it occurred on the very end of my handlebars it caused my front wheel to turn.  I was thrown over the handlebars, landing on my shoulder and knee.  The pedestrian took off.  I was conscious, but in no condition to either get up or pursue.  My bicycle was damaged, the phone in my pocket was broken, and I ended up with a knee injury that took several weeks to resolve.

Anyone is capable of flight from the scene of the accident.  In my experience drivers are the most common offenders of hit and run accidents.  Automobiles also pose the largest risk to the public at large.  Often drivers are obscured by view, so identifying the actual driver of the car is impossible after they flee.  Believe it or not, in Chicago getting a license plate isn't enough to get charges brought against a hit and run driver.  If someone can't ID the actual driver criminal charges will often fail.  The idea is that just becuase you know to whom the car was registered, you don't necessarily know who was driving.  Defense attorneys are experts at getting clients off based on identification defenses, and prosecutors and law enforcement are hard pressed to dedicate resources to a case they know will likely fail due to lack of identification of the actual driver. 

How do you identify a fleeing bicyclist?  Just like you would identify a pedestrian of a driver- by their physical appearance.   

The issue of licensing bicycles is not novel.  It has been thrown around in various communities for years- probably as long as bicycles have existed.  The fact is, it might not help much, it would be a practical and expensive nightmare, and then there's the question of whether or not the law would even be enforced.  Identifying a bicycle does not necessarily equal identifying a bicyclist, just like identification of a car or a car's owner doesn't identify the actual driver.  Further, bicycles aren't like cars.  An officer can run a car plate and immediately know if the plate is stolen by the make and model of vehicle the plate is registered to.  That won't be so easy with a bicycle.  Then there is the cost and logistical nightmare of implementing a licensing law for bicycles.  Finally, because bicyclists don't need a driver's license to ride a bicycle they aren't required to have identification any more than a pedestrian.  Even if someone is stopped, there is no sure way to know if the individual operating the bicycle is the registered owner short of taking them into custody.  Assuming that a licensing law is instituted the issue of how and whether or not that law would be enforced is still an open ended question.  If a licensing law is enforced as consistently as the rest of applicable bicycle laws in Chicago no bicyclist need fear being stopped for lack of a proper license plate.

I whole heatedly agree that it is irritating to see bicyclists disregarding traffic laws.  I also agree that cyclists in Chicago tend to have a reputation for disregarding certain traffic laws.  To be clear, that doesn't mean all cyclists in Chicago act that way by a long shot.  Some cyclists obey every traffic rule as a matter of principle. 

Many cyclists would point to the habitual traffic violations committed by the average Chicago driver.  Have you ever just watched a stop sign in Chicago?  There aren't too many cars that come to a complete stop at stop signs, many just flat out blowing the stops.  Speeding is also rampant in Chicago among drivers (a problem that is not common among cyclists for the practical reason that it's impossible for your average bicyclist to get a bicycle up to 30 mph on city streets).  I do not think this excuses cyclists from obeying traffic laws.

The reality is that we don't need more laws to regulate bicycles in Chicago.  We already have a ton of laws applicable to the operation of bicycles.  In my view the solution is simple and within the reach of resources we already possess...

The bicycle problem is one of enforcement.  The next time you talk to a CPD officer ask them how many tickets they have issued to cyclists over the last year.  My bet is that most officers have not written a single ticket to a bicyclist ever.  How many bicyclists do you know in Chicago who have received tickets for blowing stop signs or red lights?  How many times have you seen a bicycle pulled over by CPD after a traffic violation?  My bet is never on all counts.  What good will it do to pass more laws to regulate bicyclists if they are only going to be enforced like the laws we already have?   

Imagine how Chicago drivers would act if they knew there was no chance that they would be stopped or ticketed for traffic violations.  Chaos would rule the streets.  Drivers would be lawless.  Perhaps after considering that comparison one might even argue that bicyclists in Chicago show rather impressive restraint to follow traffic laws at all.

If bicyclists disregard traffic laws in Chicago it is because they know they can commit traffic violations without the slightest thought of being stopped.  I, for one, would love to see that change for the better of bicyclists, pedestrians and drivers in Chicago.  If a bicyclist even suspected a remote chance of being stopped for a traffic violation it might make them think twice about blowing a stop or cutting a red light, but as things exist right now there is no enforcement motivation for cyclist to obey laws.  The cyclists who do obey traffic laws do so because of a principle, not because they are worried about tickets.

It frustrates me to hear people like our author above grouping all cyclists into one lawless group.  We're not all like that.  Some of us recognize the need to follow traffic laws even though we know we need not fear repercussions if we disregard them.  Lawless cyclists hurt law abiding cyclists becuase they cause stereotypes and biases just like they have caused to our author above, and that hurts bicyclists as a whole.  Our author above has lost all sympathy for cyclists, and he doesn't see the bicycle as the dignified and civilized form of transportation it has historically been.  He's not likely to support expansion of bicycling or bicycling infrastructure in Chicago becuase he sees cycling as a problem rather than a solution.  Now, this man's voice is one more against the future of cycling. 

Chicago allows cyclists to disregard traffic laws.  As an avid cyclist I firmly believe this is a disservice not only to the other users of Chicago's streets, but also to bicyclists and the future of the bicycle as one of the solutions to urban transportation problems.  We must be mindful of the need for consistent even-handed traffic enforcement as to all users of Illinois' roads for the better of bicyclists and the future of bicycling.