Bicycle Safety, Responsibility and the Law

By Stephen Gorey, Attorney at Law

Recently I was asked what type of legal protection bicyclists have when they are out riding.

Laws on this subject differ between Arizona and California. Of course, all bikers have a duty to be on the lookout when they are out riding – much like a driver has responsibility when driving a car. Obeying posted signs, making proper turns, staying in the correct lanes and other common responsibilities are expected of anyone riding a bike.

Below are more specific areas of discussion on this topic I hope you’ll find helpful. If you or a loved one has been involved in any type of accident involving a bicycle, a skateboard, a scooter or any such means of transportation, contact me for a more detailed analysis of your own personal situation.

(Q) Does the law require you to wear a helmet at all time when bicycling?

(A) There are no Federal Laws that require bicycle riders to wear helmets, however some states and some cities have passed requirements. Arizona has no such law.

California laws require all minors to wear helmets while bicycling. The helmets must meet certain nationally recognized safety standards. Children who are passengers on bikes and who are under 4 years old or who weigh less than 40 lbs. must be outfitted with helmets. Similarly, children under age 18 are required to wear helmets while skateboarding, roller skating, roller blading or riding scooters.
Violation of these requirements can result in a ticket.

A far worse legal consequence results to the rider without a helmet if an accident occurs because the law may find such a rider to be comparatively or contributorily at fault. This means that the rider may be found to have been at least part of the reason why he or she was injured and the amount of money in settlement or verdict may be substantially reduced.

(Q) Can I legally ride a bike on a sidewalk in the state of Arizona?

(A) ARS 28-812 (Arizona Revised Statutes) applies when the bike rider is riding on the roadway (the same road that vehicles travel upon). This Arizona law states that all traffic laws apply to bike riders. It does not apply when the bike rider is on the sidewalk. If the bike-rider leaves the sidewalk at the corner and rides through a crosswalk, then case law holds that a crosswalk is a safety zone and a bike rider can travel through it in either direction (a technical exception to 28-812 which requires the bike rider to ride with the flow of traffic). Typically, the bike rider on the sidewalk must yield to pedestrians on the sidewalk. However, some local municipalities/townships (etc) have their own ordinances that govern bike riding on sidewalks (such as traveling in the same direction as the road traffic that the sidewalk curbs against, etc.) For this reason, local ordinances as well as State laws must be checked to see what the rights and responsibilities are for bike riders.

(Q) What are mitigating damages in a bike accident?

(A) Mitigating damages means that if a bicyclist is hurt by someone or some obstruction while riding a bike, they would still have a duty to lessen their damages. Let’s say for example – two bicyclists run into each other on a busy bike path causing one of the riders to fall and break an arm in the process. Rather than going to the hospital to have the arm casted - the injured bicyclist now wants to seek maximum damages against the other - claiming the broken arm no longer functions as it did prior to the accident. To this, a jury might say: “No, you could have gone to the doctor and got it casted and 3 months later it would be as good as new.” In a case like this the person causing the accident may only be responsible for the amount of damage if the injured party had gone to seek proper medical care and this ‘mitigated the damages’.

Much of this of course is common sense – for all parties involved, including a judge and/or jury considering the facts. There are rules that have to be followed – there is law that must be followed – but everyone must bring their common sense with them when they come into court – and apply that common sense to the law.


Safety Steps around Pools and Spas PSA to Air Nationwide

U.S. Consumer Product Safety Commission Debuts New PSAs About Safety Steps around Pools and Spas

WASHINGTON D.C. – Today, the U.S. Consumer Product Safety Commission (CPSC) debuts a series of Public Service Announcements (PSAs) about their Pool Safely campaign (www.poolsafely.gov) illustrating how simple steps saves lives at pools and spas.

Partnering with the American Red Cross (www.redcross.org) and the YMCA of the USA (www.ymca.net), CPSC produced broadcast, print and radio PSAs that are being distributed to media outlets across the country. Available to local television and radio stations in English and Spanish, the English-language versions feature Ming-Na, the voice of Mulan in Disney animated films and star of the NBC drama “ER”, The Joy Luck Club and currently starring in Stargate Universe.

“Our new PSAs are intended to remind parents and children to stay safe in and around pools and spas by practicing as many water safety steps as possible,” said Inez M. Tenenbaum. “The Pool Safely campaign encourages everyone to adopt new safety behaviors while having fun in the pool. It’s important to remember that every drowning incident represents a family tragedy.”

The PSAs introduce four families and stories about the simple steps that save lives: door alarms, knowledge of CPR, fencing around pools and spas and safety drain covers in spas. The characters in the broadcast PSA are also featured in the print versions of the PSA. The radio PSAs promote the importance of swimming lessons as a simple step that save lives.

“It’s important that families are aware of the simple steps that can make a big difference around the water,” said Connie Harvey, water safety expert for the American Red Cross. “Sharing that knowledge through PSAs is a great first step to helping parents and children stay safe while enjoying their summer activities.”
“Local YMCAs are where millions of children in thousands of U.S. communities learn how to swim and how to stay safe around pools and spas,” said Mike Espino, Aquatics Safety and Risk Specialist with YMCA of the USA. “The new PSAs remind parents and children about the importance of staying safe in the water. The YMCA of the USA is proud to partner with CPSC on the Pool Safely campaign because it supports our efforts to help families stay safe and be responsible around pools and spas.”

The broadcast PSAs will be rolled out through the summer in markets across the country. They will be distributed to more than 1,200 local television and 500 cable stations, as well as more than 500 radio stations. The PSAs will also be available on the Pool Safely YouTube channel (www.youtube.com/poolsafely). Campaign partners and supporters will feature them on their websites and promote them through their networks.

The print PSAs promote the initial four safety steps as well as swimming lessons and include versions suitable for insertion in publications as well as billboard and bus/transit versions. They will also be featured in pool and spa industry trade publications.

The Pool Safely campaign is CPSC’s national information and education program for the Virginia Graeme Baker Pool and Spa Safety Act (P&SS Act). The Pool Safely campaign is designed to raise public awareness, support industry compliance, and improve safety at pools and spas. The campaign was launched in Fort Lauderdale, Florida prior to Memorial Day, the traditional start of the summer swimming season.

About the American Red Cross
The American Red Cross shelters, feeds and provides emotional support to victims of disasters; supplies nearly half of the nation's blood; teaches lifesaving skills; provides international humanitarian aid; and supports military members and their families. The Red Cross is a charitable organization — not a government agency — and depends on volunteers and the generosity of the American public to perform its mission. For more information, please visit www.redcross.org or join our blog at http://blog.redcross.org.
About YMCA of the USA
YMCA of the USA is the national resource office for the nation's 2,687 YMCAs, which serve 21 million people each year, including more than 9 million children under the age of 18. YMCAs respond to critical social needs by drawing on their collective strength as one of America's largest not-for-profit community service organizations. Through a variety of programs and services focused on the holistic development of children and youth, family strengthening, and health and well-being for all, YMCAs unite men, women and children of all ages, faiths, backgrounds, abilities and income levels. From urban areas to small towns, YMCAs have proudly served America's communities for nearly 160 years by building healthy spirit, mind and body for all. Visit www.ymca.net to find your local YMCA.

About CPSCCPSC is an independent federal regulatory agency created by Congress in 1972 “to protect the public against unreasonable risks of injuries and deaths associated with consumer products.” The Pool Safely campaign is proud to partner with leading organizations, including American Red Cross, YMCA of the USA, Safe Kids USA, National Drowning Prevention Alliance (NDPA), Home Safety Council, World Waterpark Association (WWA) and Abbey's Hope. For more information, visit the website at www.poolsafely.gov and follow the campaign on Twitter @poolsafely.

Today Show Reports on Child Drownings

Visit msnbc.com for breaking news, world news, and news about the economy


Dangerous Drugs: Propofol Infections Following Colonoscopy

Propofol is best known as the drug that may have killed Michael Jackson, but it is widely used in colonoscopies to induce a twilight state for the examination.
The problem with the drug in colonoscopy use is not with the drug itself, but with the way that the manufacturer packages it and in the way that some doctors and clinics use it.

The directions for using Propofol state that each bottle is for a "single user" only. This means that if less than the contents of the bottle are used on a patient that the excess should be thrown away and not given to another patient. However, the bottle is filled with more than one person would typically need. Why? Because little bottles cost more to fill in the manufacturing process. It is simply easier and cheaper to get the liquid into a bigger container. Also, the manufacturer can charge more for the greater amount of drug in the bottle.

The very big problem is that some doctor offices and colonoscopy clinics either do not properly control their nurses and technicians who use the bottles for more than one patient, or else those doctors and clinics try to make more money by using one bottle for more than one patient and billing Medicare or another insurer for more bottles than are actually used.

Here's the result. When the nurse or tech draws the Propofol the first time and then injects it into a patient they wait to see if enough has been administered for that person to be "put out" for the procedure. If not, then the same needle is used for the same patient and it is dipped back into the vial of Propofol to draw out some more to be used. What happens when the needle goes back into the bottle to draw out more Propofol? You guessed it, the bottle becomes contaminated from the first injection. This would not harm anyone EXCEPT that if the same vial is now used for a second patient, that second patient becomes infected even if the needle has been changed because the bottle, not the needle, is now growing the infection inside the liquid.

This has led to terrible injuries due to Hepatitis C, B and HIV being transmitted in colonoscopy clinics and other offices administering the tests with Propofol used to induce a twilight state of consciousness.

Recently a jury found this infection process to be the fault of the manufacturers, Teva Parenteral Medicines Inc and Baxter Pharmaceuticals. Suits are pending around the country.

If you or a loved one have developed Hepatitis C following a colonoscopy I would like to investigate the matter and to help you. You can reach me through the phone numbers and e-mail address listed on my webpage at www.stephengorey.com.

Product Liability - Toyota Sudden Acceleration

Every few days it seems that another news article documents a Toyota product, including Lexus, suddenly going faster than the driver wanted. This has resulted in tens of thousands of complaints to the National Highway Traffic Safety Administration (NHTSA) and lawsuits across the country for people who have been seriously injured or their loved ones killed. While it is true that some of the complaints were caused by driver error or objects jamming the gas pedal, such as floor mats, the main culprit appears to be random electrical signals.

To get an idea of what this means, think of a "rogue wave" out in the ocean. It used to be that there was no real proof of the existence of these "monster waves" that sailors reported sometimes being 100 feet high. Now, however, due to satellite imaging, the existence of the waves has been proven. They have also recently been documented on film hitting cruise ships.

Where do these waves come from? The most accepted theory now comes to us from the world of mathematics and specifically from the realm of "fractals." One such theory which is now being empirically verified by the existence of rogue waves, is that a seemingly regular current of energy that flows with even spacing will, for an as yet unknown reason, produce a "spike" in the current every now and again at times that are (as yet) unpredictable. So, going back to the ocean, the waves can roll up and down with the currents of energy in a lazy sort of fashion in 5 to 10 foot swells and then, unexpectedly, a monster rogue wave will appear inside the "calm" waters.

Electronic signals in the car can do the same. The car's electrical signals may flow in a familiar up and down wave pattern but every now and then a rogue "random" signal may appear. If there are too many electronic components in too small a space, the signals can interfere with each other.

Toyota gas pedals do not pull a lever anymore. When you step on the gas or set the cruise control, you are sending an electronic signal to the car's computer. If a stray signal from within the car or outside the car gets interpreted by the car's computer as a command to accelerate the car, the engine will suddenly accelerate.

While it may not be possible to eliminate these stray electrical signals, the auto industry has known for many years how to stop the signals from causing sudden acceleration. The answer is a brake override system where any pressure to the brake will be the primary command that will stop the car from accelerating. Many car manufacturers use this system, but not Toyota. Why? The easy answer is money. It costs money to retrofit automobiles. Beyond that, Toyota believes that their keyless system by which an owner with a small transmitter in their pocket can start the car by putting a foot on the brake and pushing a button is a safety device (because the car cannot be started by pushing a button with a foot on the accelerator) that Toyota doesn't want to give up. It has a "wow" factor that sells cars.

I have successfully handled product defect cases involving automobiles with engine design defects. If you or a loved one has been injured by sudden acceleration in a Toyota product, I would like to investigate this for you and to help. You can contact me through any of the phone numbers or email address listed on my web site at www.stephengorey.com.


Swimming Pool Safety Tips

Dear Readers - Recently we completed a 7-segment video series on pool safety. A sample segment is included below.  You can view the entire series by following this link: www.youtube.com/poolsafetytips - Special thanks to Pool Safety Mom Mary Ann Downing for her invaluable help with this series.

Sidewalk Accident

Who is responsible when a broken or otherwise dangerous sidewalk causes a serious fall? You might be surprised to learn that the adjacent land owner might be partially or totally responsible.

Portions of sidewalks are sometimes pushed up enough to create a tripping hazard when tree roots force up a concrete slab. The owner of that tree has a duty to keep his or her trees from creating such hazards and should arrange to have the sidewalk fixed. Often, a city will have an ordinance under which it will pay for part of the repair if notified before an accident takes place, whereas if notified after an accident the city will repair the sidewalk and send the homeowner a bill for the full repair charges.

Irrigation water or lawn watering that spills across sidewalks and allows slippery moss to grow on the walkway is another typical problem that will render a landowner responsible for accidents.

Most often, municipalities and landowners are “jointly responsible” for sidewalk safety and the victim will bring a claim against both at the same time. The city and the home owner will then negotiate between themselves the amount that each will contribute to a settlement.

The three arguments that municipalities and landowners most often raise against such a claim is either (1) the defect in the sidewalk was so “open and obvious” that the only way an accident could occur would be if the pedestrian was not exercising reasonable care for his or her own safety, or (2) the defect in the sidewalk was so trivial that an ordinary pedestrian would not have fallen, or (3) the description of the fall, such as whether the leg “flew out” or “buckled under” is not consistent with the type of accident described by the victim.

“Open and obvious” dangers are not a defense where the pedestrian does not have a reasonable alternative route to avoid the problem.

“Trivial defects” are generally changes in sidewalk elevations (raised slabs) under 3/4 of an inch. However, such defects can still cause liability in certain circumstances. For example, in areas known to be frequented by children, such as near schools, where skateboarding is common, even a ½ inch raise or less can result in predictable and serious injuries.

Consistency of complaints with the mechanism of injury generally requires the use of an expert in falls. These experts usually have degrees in safety engineering and sometimes in bio-mechanics, but all such competent experts have extensive experience in the science of how and why people fall and what injuries can be expected as a result of different traumas.

Municipalities and landowners have a duty of reasonable inspection and subsequent repair or warning, depending on the nature of the hazard. Where this duty is breached and an accident occurs, the victim has a possible lawsuit and should seek immediate representation by a good attorney who will (1) quickly have the area of the fall photographed and measured to preserve evidence as the walkway will usually be quickly repaired after a claim is filed, (2) preserve the victim’s shoes to show that the pedestrian was walking in a normal and responsible manner with due care for his or her own safety, and (3) make certain that the victim properly explains to his or her doctors the exact manner in which the body moved during the fall in conformity with the type of slip or trip.

How Fast Should I Settle My Case?

There is an old expression in the law: “You can only go to the well one time.” This means that when you settle you cannot come back later and say “My condition is worse than we thought it would be. Pay me more.” It also means that you will not be able to settle your personal injury case or your medical malpractice case and “leave the medicals open” (to pay your doctor bills in the future as you get billed).

How then do you get compensated for future problems you may encounter with your health and in your life?

The answer is that your lawyer must hire experts in various fields who can make reasonable predictions about your future. In the field of health, this will mean doctors skilled in the specialty of your post-accident condition: someone who can testify based on scientific studies and his or her own education, training and experience in treating people with your condition. In the field of lost wages, this means a vocational expert: someone who can testify as to the types of jobs available to someone of your age, education, work experience (transferable skills) and level and type of impairments. In the field of economic losses, this means an economist who can predict what types of job benefits, raises, employer provided insurance and bonuses, career advancement opportunities and similar job related benefits would probably come to you over the course of your life. The economist would also often be asked to predict the future value of the dollar in order to determine how many of today’s dollars it will take to compensate for the loss of those future dollars (which might be worth more or less in the future, depending on inflation).

These estimates can only be made once your physical and mental injuries are fully known.

Let’s take an example of this concept. Assume someone is hit from the rear in an automobile accident. At the scene, the victim feels some stiffness and the next morning wakes up with neck pain. Typically, x-rays will be taken and physical therapy initiated. Major relief might be accomplished in two to three months. However, what happens if the victim settles at this point and a few months later severe pain in the neck running down into the arm signals that a disk in the neck was weakened in the accident and didn’t show up on a simple x-ray? Months or years and perhaps permanent injury might be the result and if the settlement was made too early and the victim will not have been properly compensated.

Unfortunately, we have all seen articles about “churn and burn” businesses that promise “quick settlement of your claim” without also advertising that this can carry some very real hazards.

Patience and preparation are the keys to full compensation. Reputable law firms will gladly set up your file, advise you as to how to protect your rights, make suggestions as to doctors known for their skills in the area of your injury, and help you avoid some of the common pitfalls in the early stages of a claim, all without charge unless there is a recovery for you at the end of the case.

The proper start to a case requires a good attorney and the wise accident victim will hire one as soon after an accident as possible to begin building the case with care and patience.