Wrongful Death

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Cities: Listen up! Bicycles = “ordinary travel” & you must provide safe roadways.

Last week Division II Court of Appeals ruled that cities must provide safe roadways for all traffic, including bicycles. The three-judge panel found that cycling is a mode of “ordinary travel,” not just a sport. This means, Div II says, that cities must maintain roads for safe bicycle travel. What’s the big deal about calling bicycles “ordinary travel?” A lot.

In 2012, a Seattle judge dismissed the consolidated cases for injured cyclists. who argued that the South Lake Union Trolley tracks on Westlake were unsafe for cyclists because of the trolley tracks. Their bike tires too easily got trapped in the flangeways, where the trolleys’ wheels travel. However, the court in that case did not address whether bicycling was considered “ordinary travel” for the purposes of Washington Pattern Jury Instruction (WPI) 140.01. WPI 140.01 says that a municipality “has a  duty to exercise ordinary care in the design/construction of its public roads to keep them in a reasonably safe condition for ordinary travel. The judge focused on the fact that the plaintiffs’ attorney in that case (not from our firm) has not provided any expert to testify to the standard of care. In other words, not expert argued that the City of Seattle failed to design and construct the road that was reasonably safe for ordinary travel. Thus, the City was let off the hook.

Plaintiff Pamela O’Neill was seriously injured while commuting home on her bike from work in Port Orchard. When her bike hit a patch of road  with gaps in the concrete, her body flew onto the road. O’Neill sued the city, claiming it was negligent in maintaining  the road, when it should have provided safe travel for bicycles. A Superior Court judge granted the city’s motion to dismiss the case. The appeals court overturned that dismissal and sent the case back to the lower court “for further proceedings consistent with this opinion.”

“Bicycles are an integral part of Washington’s ‘statewide multimodal transportation plan,” so cities must make roads safe for bicycles, the judges said.

O’Neill is an experienced cyclist who regularly commuted by bike to and from work and often took new routes to challenge her abilities, the court ruling said. Before July 18, 2009, she had never ridden down Sidney Avenue, the record said. As she headed down the hill, the road conditions changed from smooth to uneven. Photographs of the site of the accident showed “gaps between concrete slabs of up to 4 inches and height differentials of more than 1 inch,” the court said. At one point, Pamela’s handlebars jerked to the right, throwing her to the ground. She landed on her head and right shoulder and suffered serious injuries.

A city public works director said in his deposition that the city fixes roadways on a “complaint-based system” and the city had not received complaints about that stretch of road.

To challenge that claim, O’Neill offered testimony from an expert witness named James Couch, a U.S. Cycling Federation coach who owned a bicycle store in Tacoma. He said the breaks in the concrete slab were “enough to cause even the most skilled cyclist to lose control of their bike.”

The Superior Court found that Couch did not qualify as an expert witness and excluded his testimony, but the appeals court said Couch’s knowledge, skills and experience qualified him as an expert and the court erred by excluding his statements.

The judges also said the court erred when it said O’Neill “assumed the risk of poor roadway surface conditions” under the doctrine of implied assumption of risk.

“Falling is an inherent and necessary risk of the activity of cycling, and O’Neill assumed the general risk that she would fall off her bicycle and injure herself,” the judges wrote. “She did not, however, assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.”

Self-Driving Cars: Why they need to be at least 2x’s better than humans.

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

True to my technophile self, I’ve embraced all the latest advances in automobile technology. I was driving a few friends back from lunch a few days ago, and they were aghast at how I didn’t even turn my head as my car backed into a tight space. So, the news of the fatal crash involving a Tesla-S in self-driving mode (aka “Autopilot”) broke my heart. I pictured the proud Tesla owner, Joshua Brown (a tech consulting firm owner) who had grown accustomed to trusting his car to drive him in stop and go traffic. That fateful day was sunny, exceptionally bright, when a tractor-trailer turned left in front of the Tesla driver.

The Tesla news release explained:

Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S. Had the Model S impacted the front or rear of the trailer, even at high speed, its advanced crash safety system would likely have prevented serious injury as it has in numerous other similar incidents.

While my enthusiasm for autonomous cars remains in high gear, this tragedy highlights the fact that the engineers need to reexamine their algorithms to uncover any other possible scenarios where sensors may not react quickly enough to keep all of the passengers safe.

Tesla states:

Autopilot is getting better all the time, but it is not perfect and still requires the driver to remain alert. Nonetheless, when used in conjunction with driver oversight, the data is unequivocal that Autopilot reduces driver workload and results in a statistically significant improvement in safety when compared to purely manual driving.

This begs the question: Why have an Autopilot function if an alert driver is constantly required to oversee the Autopilot? Human nature will result in drivers allowing themselves to get distracted, once putting their cars into self-driving mode. What’s the purpose of an autonomous car, if the human behind the steering wheel cannot let her mind wander for even a moment?

Another cyclist crash on the First Hill Streetcar tracks demands change

(Above KOMO News story aired June 20, 2016)

What does it take to make this treacherous stretch of the First Hill Streetcar tracks safer for cyclists?  A few weeks ago, we mourned the tragic death of cyclist Desiree McCloud, who crashed her bike only a few blocks away from where our client, cyclist Daniel Ahrendt, crashed his bike and survived after a Metro bus ran over him. Now, we have Jessica Hicks, who crashed on her scooter a few weeks after Denise Chew, a Tukwila nurse, crashed in the same area. To add insult to injury, Denise’s scooter was auctioned off, while she was unconscious and on a ventilator at Harborview. Really. I’m not making this up.

There are a number of ways that we can make this area safer for those riding two wheels. Bicycle advocates have frequently pointed to flange-fillers (used in a less trafficked area of the First Hill Streetcar line in the International District) or a covered-track system such as VeloStrail (currently used in Europe for curved tram tracks that intersect cyclist/pedestrian paths). As much as I would love to see solutions like those embraced, we also have a number of other less dramatic options. Let’s look at what the City has done on the Second Avenue corridor, soon after the horrific death of young attorney and friend Sher Kung.

We should look at options that keep cyclists away from the tracks with bollards, signalization, bright paint, and education–among other ways. In a future post here, I will share more insights with a transportation engineer, who is well versed in the area of cyclist safety along light rail lines.

How many cyclist deaths/injuries along First Hill Streetcar Tracks does City need to make changes?

Desiree McCloud, 27 year old, got her tire caught in the curved First Hill Street Car tracks, close to where my client Daniel Ahrendt crashed his bike and was run over by a bus.

In the far right corner of photo is where the First Hill Streetcar tracks curve into the cyclist lane. Desiree McCloud, 27 year old, got her tire caught in the curved First Hill Street Car tracks, close to where my client Daniel Ahrendt crashed his bike and was run over by a bus.

A little over a year after my client, Daniel Ahrendt, caught his tire at the intersection where First Hill Streetcar tracks curved onto the bike lane. I’m saddened, but not surprised to learn about 27 year old Desiree McCloud’s death. She too crashed along the same tracks, close to where Ahrendt was run over by a Metro bus. Witnesses apparently saw her flip over her handlebars and hit the pavement.

The South Lake Union cyclist crash cases were dismissed because the City argued that bicycles were not considered “ordinary travel” along the South Lake Union route. In fact, the City had planned to ban bicycles there.

Top red arrow shows where Desiree crashed her bike. Lower red arrow shows where Daniel crashed his bike. Notice any similarities?

Top red arrow shows where Desiree crashed her bike. Lower red arrow shows where Daniel crashed his bike. Notice any similarities?

However, in Daniel’s and Desiree McCloud’s cases, the City included bike lanes along the First Hill Streetcar line. The argument that bicycling is not considered “ordinary travel” cannot pass muster for our injured/killed cyclists who were invited to ride their bikes on this hazardous portion of the streetcar line. We must not blame cyclists, when the City developed this new streetcar line with eyes wide open regarding the extraordinary hazard that the curved tracks pose to cyclists and those on wheelchairs.

Note, there are rubber flangeway fillers along this streetcar line in the International District by 8th Avenue. Why there aren’t flangeway fillers or something else that will prevent cyclists from unintentionally falling into these curved tracks escapes me. Excuses about the cost in replacing the rubber or maintaining them is absurd. How many lives and serious injuries does the City need to see, before it does something like it did in response to the injuries and deaths from cyclist crashes on Second Avenue?

Please visit the donation page that Desiree’s family put up, which will go to cover medical costs, etc.

Washington State Pedestrian Deaths Increase by 28%

 

Pedestrians are more likely to get killed  when not at an intersection.

Pedestrians are more likely to get killed when not at an intersection. They are also far more likely to get killed when walking during the dark hours of the night/early morning.

Pedestrian Deaths Light Levels

Over the past year, our firm has experienced a surge in calls from pedestrian-related accidents. So when I read read the most recent annual GHSA Spotlight on Highway Safety Report (released Mar. 8, 2016), I wasn’t surprised to see that pedestrian fatalities were up by 28% in Washington State. A recent Seattle Times article also cited the GHSA report, which pointed out that pedestrian deaths increased from 32 in the first six months of 2014 to 41 during the same period last year, a 28-percent increase.

A couple takeaways that I find especially valuable: 1) pedestrian deaths are much higher at non-intersection related accidents (e.g., not waiting to cross at an intersection) and 2) walking at night is far more likely to lead to a fatality than walking at dawn or dusk.

Two new Ducks victims file lawsuits today


The deadly Ride The Ducks crash that claimed six lives on Sept. 24th on the Aurora Bridge. Today the Ducks attempts to turn the corner. It is is the first day since that crash that some of the Ducks amphibious vehicles will be out back on the roads in limited numbers in Seattle.

Frustration and surprise were among some of the reactions from SKW clients Yuta Masumoto and Mazda Hutapea, international students at North Seattle Community College, who were on the bus and who sustained serious injuries as a result of the crash. These two young students, excited to study abroad, are now faced with long recovery times to deal with broken bones, torn ligaments, and bodies that resemble those who have lived four times longer than each of them.

Their lawsuits were filed today and to hold the Ducks company accountable for vehicles that were apparently fraught with mechanical issues.

*Doug Phillips is co-counsel.

Woman accused of tampering cell phone records in fatal pedestrian-car accident

I just read an article in today’s Seattle Times that I had to share here as it’s a stark reminder that distracted driving can kill.

Washington was one of the first states to enact a ban on texting or talking on a handheld cellphone while operating a moving vehicle. Under WA State law, drivers can be charged under one of three prongs: 1) Operating a motor vehicle while under the influence of drugs or alcohol; 2) in a reckless manner; or 3) with disregard for the safety of others. The Seattle Times article is about a WA resident charged under the third prong.

A Seattle resident allegedly tampered with her cell phone records, to hide her pattern of distracted driving. The woman was charged with vehicular homicide just last week. A King County prosecutor accused the woman of talking on her cellphone when she struck and killed an elderly pedestrian in February 2014. The police indicated that she altered phone records in an attempt to cover up her distracted-driving behavior.

Last year, on a clear and dry February afternoon, 78 year old Tze Kiu Ng stepped off a Metro bus at a bus stop in South Seattle. Mr. Ng was walking eastward at a marked crosswalk. A woman driving a minivan was stopped at a stop sign behind the bus. Ng had almost crossed the street when the woman accelerated across the intersection and rammed the van into him. The woman stayed in her vehicle for about five minutes, talking on her phone, the bus driver later told police.

The police easily ruled out speed and impairment. But the driver charged with vehicular homicide told officers she “never saw the pedestrian until the impact occurred.”
The day was cold, clear and sunny and there was nothing to obstruct her view of Ng, the charges say.

Although the defendant turned over some phone records, the formatting raised suspicions because of lack of information regarding the cellphone carrier.

I just hope plenty of people read this and share it with others. Too often I see drivers texting or yakking on their phones while driving. This type of distracted driving is just as lethal as drunk driving.

Dan the Bike Man Responds and Agrees that letting Cyclists simply yield #ItSoundsLikeABadIdea

Well folks, Dan Laurence responded to my previous blog post. Admittedly, I’m surprised that he agrees: The possible new law allowing cyclists to simply yield at stop signs is a bad idea. Here’s what he says:

People for the “Idaho stop” law tend to focus on the personal convenience  (personal rights!) and not the epidemiological consequences (social Responsibilities!).  Allowing cyclists to not stop is one more variable thrown into the set of expectations for predicting behavior of other vehicles on the road.

I actually believe that laws that treat cyclists differently from motor vehicles are, on balance, dangerous for cyclists, because they vacate commonly appreciated expectations for road behavior.  To be safe, a driver needs to not only obey the law, but be able to predict what other road users are likely to do.  confusion in that regard decreases safety.  at least some driver’s won’t know the new law, or will be angry about it and ignore it out of spite. Moreover, the “Idaho stop” law would lead to complacency among cyclists. the increase in convenience promised by an “IDAHO STOP” comes with increased risk of collisions with motor vehicles and pedestrians.

True, compared to motor vehicles, cyclists go relatively slowly and have unobstructed vision. They are usually capable of appreciating cross-traffic risk so long as they come to a “rolling stop”. Moreover, they feel the pressure of holding back traffic behind them. Asking cyclists to signed intersections with no traffic seems ridiculous to cyclists much of the time. But the real problem is cyclists who will use the law as a reason not to bother to slow down, or develop a bad habit of thinking “this intersection never has cross traffic, so why bother to slow down?”, or who ignore the fact that cars may not see them on approach to the intersection. [Emphasis added.] This is especially true among cyclists in dark clothing without lights who ride in twilight, on gloomy days, or at night; something i see (unfortunately) all the time.  There is also the problem of the car on the opposing side ready to turn left that fails to signal, or signals but thinks the cyclist will yield, and will turn left in front of the cyclist.

I’m sure I could go on, but Catherine, as much as I don’t like stopping unnecessarily, I agree with you.  As a cyclist, I think that if I run a stop sign, the risk should fall squarely on me.

Let’s not pass this law. #ItSoundsLikeABadIdea given that few cyclists are getting tickets for running stop signs, i question the need for the change in law. Better simply to treat the issue similarly to the way Seattle treats marijuana usage: a very low priority enforced only when someone is behaving recklessly.

WSDOT & SDOT form Aurora Bridge “safety team”


A couple weeks have passed since the last significant crash Aurora Bridge that claimed six lives. Based on a KING5 news story tonight, a safety team of sorts is assembling. Team members are comprised of six individuals from SDOT and two from WSDOT.

The SDOT members include the city’s traffic engineer, two collision analysts, a corridor safety expert and the division manager for transportation. A project manager along with a state traffic engineer and regional administrator will head the team. Additionally, police and other city and state agencies are expected to participate.

Some of the members wear different hats within their agencies and others will focus entirely on their role on this team per KING5 investigative reporter, Glenn Farley.

This time, let’s shine a light on this entire process and ensure that the City and State follow through in making the bridge safer. Rather than focusing on misleading statistics (e.g., the relatively “low” number of crashes), let’s open our eyes to widespread and well-founded concerns of those who must drive on this bridge regularly with the fear of another fatal collision.

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