John Forester, M.S., P.E.
Cycling Transportation Engineer
Consulting Engineer, Expert Witness & Educator in
Effective Cycling, Bicycles, Highways & Bikeways, Traffic Laws
7585 Church St., Lemon Grove, CA 91945-2306
619-644-5481, forester@johnforester.com

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COMPLETED CASES
WITH DEPOSITION OR TESTIMONY

 

1 January 2000 - 31 December 2009



Cameron vs Trek, Adventure Sports, et al: Superior Court, Juneau, AK, 2001. I assisted Steven Lewis Hempel, attorney for Cameron. Cameron was an active woman cyclist with experience of long supported tours, but without camping-touring experience. She had all of her bicycle maintenance work done by others, and she had some balancing problems as a result of an earlier, non-cycling, head injury.

Cameron purchased a new Trek 2120 from Adventure Sports for a camping tour with a small group, from Fairbanks to Juneau, intending to carry her gear on a rear rack. Because of delays in delivery of the bicycle, she test rode it without rack or load, and then had it packed for transit to the Fairbanks airport. Upon trying to mount the rack, she found it would not fit, and went to Beaver Sports to have a different rack fitted. Upon starting out with the loaded bicycle, she found that it wobbled around. Thinking that this was normal with a loaded bicycle, and was also due to her inexperience with the load, she continued on the trip for some 600 miles. Her wobbling was noticed by other members of the group.

Cameron found that lightly applying the brakes reduced the wobbling. On a moderate descent (4.18%) where the road had been completely regraded but had not yet been paved, she rode out of the gravel packed by motor traffic into softer gravel, fell, and was seriously injured.

Cameron sued Trek and Adventure Sports, and AS sued Beaver Sports. The five expert witnesses who examined Cameronís bicycle gave different opinions. Only two of these actually rode Cameronís bicycle. Forester and Van der Plas, experts for Cameron, found that the rear wheel had many loose spokes, 10 with no tension at all, and the loose spokes let the rim wobble from side to side. This caused the bicycle to have a very nasty wobble that made it a beast to steer, worst at low speeds. With a proper wheel installed, handling was normal for a loaded bicycle. Schubert, for Beaver Sports, found the loose spokes and would not ride it. Bretting and Mitchell, for Trek and Adventure Sports, did not find the loose spokes, merely commenting that the wheel had been so put out of true in the accident that it was unridable. It was easy to show that the curve in the rim was not caused by the fall. The rim had moved toward the spokes that had remained tight when the opposite ones had loosened; the opposite pattern of tightness would have occurred had the rim been pushed over.

It was obvious that the spokes had started to loosen right from the start of the loaded riding. The more heavily loaded a wheel, the higher the spoke tension has to be. It is well known that if a wheel is built with insufficient spoke tension, or with residual spoke torsional stress, its spoke nipples are likely to unscrew gradually as it is being ridden. This is what happened. Perhaps Cameronís initial wobbling was caused by her unfamiliarity with a loaded bicycle, but she would have overcome that rapidly. The wobbling caused by the progressive spoke loosening took over without her recognizing the fact. The fact that lightly applying the rear brake reduced the wobbling confirms this, because that forced the rim to run true, but would have had no effect had she been causing the wobble.

Trek & AS moved for dismissal on the grounds that there was no direct evidence that any wobble had caused the accident, which was caused by Cameronís reckless incompetence in steering into the gravel. However, the facts that they asserted to demonstrate Cameronís incompetence actually showed, upon scientific analysis, that the bicycle had been defective for a long time, something that should have been noted by Trekís own experts. After receiving the reply to their motion for dismissal, Defendants chose to settle.

Dowd vs Marui, U. S. District Massachusetts, 2001.I assisted Michael Tabb, of Greene & Hoffman, Boston, attorney for plaintiff. Dowd had owned a bicycle built by Marui since he was fourteen. He had replaced the front wheel with one purchased from the same dealer, The Bike Rack. Both the original front wheel and the replacement had quick-release hubs. Dowd, now of college age, was in a stand-up sprint when the front wheel came off, causing him to fall and incur injuries, including brain injury.

Upon inspection, the bicycle appeared to have only two significant defects. One front fork blade was bent back about Ĺ" more than the other one. However, the spacing between the fork tips was 96.3mm, which exactly fits front hubs of 96mm width, which is what Dowd had been supplied for the bicycle. One spoke in the front wheel was broken.

The displacement of the front fork blade prevented the quick-release mechanism from operating properly. Since the fork tips were not perpendicular to the axle line, the mechanism had to twist the fork tips into perpendicularity before achieving proper clamping. This required more movement than the clamping action of the quick-release mechanism, which is 2mm maximum for all common quick releases. Therefore, removing the wheel usually required that the adjusting nut of the quick-release mechanism be loosened, and replacement of the wheel always required this. In effect, the quick-release mechanism had to be readjusted for every wheel removal. In normal use, once adjusted for the fork and hub, quick-release mechanisms hardly ever need further adjustment, but release and reclamp the wheel with just the movement of the clamping lever. If the quick-release mechanism operates defectively, so that it requires readjustment after every use, then there always is the possibility of making a mistaken readjustment so that the clamping action is no longer positive and the wheel can fall out.

The question at issue was the date that the fork blade had been bent back. Did this occur as the result of Dowdís fall? Then Dowdís fall would have been caused by some other cause. Did this occur after Dowd received the bicycle but before his accident? Then Dowdís fall could have been caused by the defect, but the defect would have been his responsibility. Did the defect exist when the bicycle was manufactured? Then Dowdís fall could have been caused by the defect, and the defect would be the responsibility of the manufacturer.

Two items demonstrated that the defect had been built into the fork. First, the width between fork tips was within 0.3mm of the nominal correct minimum of 96mm. It is inconceivable that an accident that bent the fork blade back about 12 mm would have also maintained the correct distance from the other blade within 0.3mm. Dowd testified that he had always had to readjust the quick-release mechanism, right from his first ownership of the new bicycle. He, being only fourteen at that time, thought that that was the correct operation of quick-release mechanisms.

The defendants presented several defenses. One was that the bicycle had been supplied with a 100mm front hub, because that is the more modern standard. Another was that Dowdís foot had slipped off the pedal and into the spokes of the front wheel, jamming it and causing a pitchover accident.

However, I demonstrated that all these left many things unexplained (Putting a large foot into the spokes at high speed would damage far more than one spoke, and would not jerk the wheel loose.). And none explained how it was that the fork still fitted the hub exactly. The only explanation that worked was that the fork had been manufactured improperly. Defendants settled for a fair sum.

Scholz vs Regents, Univ. of Calif, San Diego Superior, CA, 2001. I assisted Axel Scholz, plaintiff.  Scholz, a physicist and active cyclist, cycled to and from his workplace on the UC San Diego campus, where there was considerable construction taking place. Cycling to work at night, on a road that had a bike lane marked, Scholz came upon a metal plate that bridged the gutter and the bike lane, two inches above the surface of the bike lane part of the roadway. Scholz maintained control of his bicycle, but the upwards jolt of the handlebars as the bicycle climbed the up-step twisted both wrists and caused injuries to them. The metal plate was part of a construction project adjacent to the roadway that had been halted for the night. The plate had been left without any marking to indicate its presence. Settled before trial.

Johnson vs Alaska Western et al; Alaska Superior Court, Fourth Dist., 2002

I assisted Jason Wiener of Clapp, Peterson & Stowers, attorneys for plaintiff. Johnson was riding in a parking lot of Walmart Co. He was riding along one of the minor parking aisles and came to a major cross aisle on which he desired to turn right. The major cross aisle was not perpendicular to the other aisles, being somewhat closer on Johnsonís left and further away on his right. The parked vehicles on Johnsonís right were in two rows, nose to nose, being fed by his aisle and by the next aisle over. There was motor traffic approaching from Johnsonís left, and Johnson made his turn alongside the side of the new aisle, turning around the rear of a van parked in the last parking slot. Because of the non-perpendicular layout of the major cross aisle, there was one more parking slot served by the next aisle over than by Johnsonís aisle. That parking slot was vacant. So Johnson rode over it when he rode alongside the major cross aisle. However, there was a parking stop berm installed there. Johnson had insufficient time to observe and to avoid that berm. He hit it, fell, and became permanently disabled.

The stop berm of that length served no purpose in that location; a much shorter one for the left wheel would have served as well and been safe. It was a visual trap that was difficult to distinguish from the normal surface. Defendants raised some absurd defenses, such as that Johnsonís handlebars were so low that he could not see sufficiently far ahead. (Johnson was a long-term transportation cyclist, and a professor of physics.) Much report writing as a result.

For my part, the case was clear and I was satisfied. Johnson had turned into an apparently clear place with insufficient time to distinguish and avoid the hazard, which had no business to be there. However, the attorneys whom I was assisting insisted on more. They had found a standard that defined a roadway pork-chop island (as pictured) as a place of refuge for cyclists and pedestrians. They insisted that I testify that the striping at the intersection of lanes delineated a pork-chop island (typically that which, at an intersection, separates a free-flowing right turn lane from the main lanes). Such testimony would be false in two ways. First, the striping, while it was intended to guide traffic, did not delineate a pork-chop island, which has a specific function in the traffic flow pattern. Second, a pork-chop island is not a place of refuge for cyclists, who proceed on the roadway and donít need its shelter. Because I would not comply, I was not employed further. I do not know the outcome.

Scott vs City of Los Angeles, Los Angeles Superior Court, CA, 2003

I assisted Delores Yarnall of Binder & Assoc., attorneys for the plaintiff. Just below the crest of the hills above Los Angeles, on a two-lane road crossing the ridge that was frequently used by cyclists, a utility trench had been dug along the road. This trench had been filled with concrete, similar to the road surface, but over the years land subsidence had opened the joint between the old surface and the new joint surface. The groove was often filled with gravel from the bank above the road, but this varied as rain removed gravel and more later fell in. The gravel supported small plants for part of its length. The groove varied in width from 1/4 inch to 1.5 inch. LA City road employees had observed the groove for several years, but had decided that because it did not constitute a danger to motorists, it need not be filled until water entrance endangered the remaining road surface.

Scott, an enthusiastic recent cyclist, was training himself to participate in one of the long-distance charity rides. He entered the road through a traffic signal at the crest of the ridge, and started down with several cars alongside him. He was riding between the curb and the groove. When the cars overtook him, and his speed picked up, he looked behind to see that no cars were there, and moved more toward the center of the lane. In doing so, he attempted to cross the groove where it was both partially empty of gravel and wide enough to trap his front tire. He fell in a classic diverting-type fall, sustaining long-term injuries to his left leg.

He sued the City of Los Angeles. Despite the testimony of the Cityís employees that they failed to fill the groove because they did not recognize its danger, and despite my testimony that few among the general bicycle-riding public recognize the danger of grooves parallel-to-travel, the jury decided that Scott should have been more careful and decided not to cross the groove.

Horne vs Kent International, US District, Eastern Kentucky, 2003

I assisted Keith Ransdell of Ransdell & Wier, attorneys for the plaintiff. The Kent Street Craze is a scooter running on wheels similar to those for in-line skates. It is fitted with a rear-wheel brake, shaped like a mudguard, that presses down onto the rear wheel. This brake may be operated by two means. The rider may step onto the brake and press it down against the wheel. The rider may use a standard bicycle hand-brake lever whose cable is attached to the brake to pull the brake down against the wheel. The brake lever is the type that is designed for easy assembly of the brake cable. It has slots in its nipple socket, in its brake mounting bracket, and in its adjusting barrel, so arranged that the brake cable can be connected to the lever while the brake inner wire is still inside the housing. In a normal bicycle installation, the brake-cable nipple and housing are held in place by the wire tension produced by the brake return spring. This tension is released only during maintenance when the bicycle mechanic may press together the brake blocks, or if the wire is disconnected from the brake, or breaks. However, in the Kent scooter installation, applying the rear brake by foot releases the wire tension, just as a bicycle mechanic may do in a bicycle installation, allowing the brake cable nipple and the cable housing to fall out of their sockets, thus making the hand lever inoperative.

Horne, an eleven-year-old boy, was riding the scooter purchased some four months previously. During that time, his father had twice reconnected the brake cable that had become disconnected. Young Horne was riding down the road from his house towards an intersection at which he faced a stop sign. He was observed to ride down, stop at the sign, and return by walking up the hill for another ride. On the next ride, he ran through the stop sign into the path of an SUV coming from his right, and was killed. The SUV evidently had sufficient ground clearance to drive over both Horne and his scooter without crushing either. After the collision, the brake cable was found to be disconnected from the lever.

The scooter had very little damage. The brake-lever bracket had a crack, but not such as would cause the cable nipple to fall out. I had tested an exemplar scooter by using the foot application while bouncing the front of the scooter on the floor to simulate the vibration of actual use. The cable became disconnected twice in about three tries. By measuring the cable tension at the lever and weighing the mass of the nipple and a short length of wire, I was able to determine that the lateral acceleration to dislodge the nipple from its socket would be 300 gs, requiring a force of 600 pounds applied to the handlebar end. There was no sign on either the motor vehicle or the scooter of any such force. The only reasonable explanation for the accident was that young Horne had used the foot application at some time during or before the final ride, but had then relied on the hand lever, which failed to operate the brake.

Kent took my deposition shortly before the mediation meeting. Kentís attorney spent much of the mediation meeting denigrating my report and testimony, but failed to convince the judge. Kent settled satisfactorily for the plaintiff.

Roberts vs County of Orange, Orange County, CA

I assisted Suzanne DeLesk, attorney for Roberts. Orange County built a highway bridge about the year 2000, and installed parallel-bar drain grates of the old-fashioned bicycle wheel trapping design, but modified by application of welded cross bars. This design had been superseded in 1976 by bicycle-safe grate designs placed in the California Highway Design Manual and its Standard Plans. There have been two accidents to bicyclists on this bridge associated with these drain grates. One, to bicyclist York, was settled before I testified. As a result, a third crossbar was added to the grates, but there was another accident, to Roberts. I testified in deposition that using drain grates of a design that had been superseded twenty years before was engineering incompetence and contrary to California standards, that the old design was valid only for roadways from which bicyclists were prohibited, such as freeways. Orange County settled soon after my deposition.

Una Smith vs Bikecology, Los Angeles County, CA

I assisted Carleton Scarlett of Dunn & Associates, attorneys for Smith. Smith bought a new bicycle from Bikecology. Soon after it was delivered to her, she went for a ride on largely level ground. She had occasion to apply the rear brake, upon which the rear wheel locked, she skidded to a stop and fell, incurring injury. The brakes were V-type, with a vertical slot for the rear axle. The left rear brake block was jammed under the rear rim. However, the position of the brake block, as determined by comparison with an exemplar bicycle, was correct. The right-hand end of the rear axle was about 1/4" below its correct location in the slot. This put the top of the rim to the right. Because of the approximately 45 degree motion of the brake block, this required greater movement for the block to reach the rim, which produced sufficient downward movement for the brake block to get below the rim and jam the wheel. By the testimony, the bicycle left Bikecology in that condition. Settled before trial.

Justice et al vs City of Seattle & Ballard Terminal Railroad, Arbitration, King County, WA

I assisted Stephen L. Day, of Betts, Patterson, & Mines, attorneys for Seattle & Ballard. The Ballard Terminal Rairoad services an industrial area just north of the Ship Canal. The tracks run westward along a street and then along the shore to serve the shoreside industries, while the street curves to the right. The Burke-Gilman Bicycle Trail ends on the south side of the tracks. The cyclists traveling west from the trailís end run south of the tracks in the street and then have to cross the tracks at a shallow angle as the street curves right. Many cyclists are presumed to have fallen while crossing the tracks, and three sued.

My inspection and test cycling demonstrated that the track crossing was as good as could be made and that there was sufficient width of roadway for the cyclists to cross at a safe angle. The plaintiffs all stated that they knew how to cross safely, but failed to do so because they feared that motor traffic which might be present would hit them if they did so. None of them had looked to determine whether or not there was motor traffic at that time and place. Had they done so, they would have had the proper information that it was either safe to maneuver safely across the tracks, or to signal traffic to wait while they did so, or to wait themselves until there was no traffic approaching. In short, they behaved negligently. I testified that since the cyclists all saw that the tracks were present and all knew how to cross the tracks safely, but failed to do so, posting signs would not give them any better information.

The arbitrator decided that the cyclists were 20% negligent but that the City was 80% negligent for failing to put up warning signs.

Chirico vs Dickís, Cabell County, WV, 2005

I assisted R. R. Fredeking, attorney for Chirico.

Dickís received a bicycle from its manufacturer in the normal state of partial disassembly, in which the front wheel was not mounted to the frame, and assembled that bicycle. Dickís then sold it to Chiricoís parents. The bicycle was loaded into the back of an SUV and taken home. Young Chirico then immediately mounted the bicycle and started on a short road route that he had often used, including a descent with several speed berms across it. In crossing one of these berms, the front wheel came off, Chirico landed headfirst on the roadway, and suffered permanent brain injury.

Examination of the impressions in the portions of the front fork where the quick-release hub operated showed no impressions in the metal of the sides of the fork ends, impressions that are supposed to be produced by the clamping action of the quick-release mechanism. Only part of the paint on these surfaces had been scraped off. The portion of the fork ends that rests on the axle when the clamping force is not applied showed the impressions of the axle threads that had been produced by Chiricoís weight because the quick-release mechanism had not been clamped. This evidence demonstrated that the front-wheel quick-release mechanism had never been properly clamped, not even during assembly.

The failure to clamp the front-wheel quick-release mechanism was hidden by the so-called positive retention device, which in this case was a thickened area of the fork ends below the axle. This thickened area is supposed to prevent front-wheel release even if the quick-release mechanism is not clamped. In this case, it merely delayed separation of the front wheel until the additional vibration caused by the speed berms caused it to separate. Without this positive retention device, the wheel would have fallen out when the bicycle was picked up, thus preventing the accident, because the wheel was not clamped.

Failure to clamp the front-wheel quick-release mechanism was the cause of Chiricoís accident. Dickís settled.

Radke vs Kitsap County, WA, 2005

I assisted David Roberts, attorney for Radke. Molly Radke was cycling on a descending two-lane largely rural road. Her husband was alongside her, slightly ahead. She encountered a depression in the roadway. This was a smooth depression, not a sharp-edged pothole, and it was about 4 inches deep and 2 feet long, with sloping ends. He passed to one side of the depression without noticing it. He could see the front wheel of her bicycle as she was riding along, until she reached the depression, when he could no longer see it, and he heard the sounds of a fall. Radke fell forwards onto her face, incurring brain injuries that resulted in permanent disability.

There were two issues: conspicuity of the depression and its effect on a cyclist. Local residents testified that the depression had existed for some months, that it was hard to see, and that children on bicycles and skateboards had crashed when riding over it. Kitsap County engaged Gerald Bretting as expert. He testified that the depression was easy for him to see and, by experiment with a duplicate depression, demonstrated that riding across it did not cause a bicycle to pitchover.

I was called in to rebut Brettingís testimony. Bretting failed to consider the obvious mechanism of the accident. Radke had not seen the depression and was not ready for it. When the handlebars jerked upward at the far end of the depression, one of her hands slipped off the bar. The resulting unequal weight on the bar swung it around into a very sharp turn and the bicycle steered itself out from under her. With no supporting bicycle under her, she fell to the ground. This is the well-understood diverting-type of fall. After my testimony, Kitsap settled the case.

Gusman v Wal-Mart, CA 2006

I assisted James Hoffman, attorney for defendant Dynacraft, manufacturer of the bicycle. Gusman purchased the bicycle from Wal-Mart. His first use was to ride it down his driveway, and when trying to turn left the bicycle suddenly stopped, causing him to fall forwards and be injured. Photographs of the bicycle showed that it had been assembled by Wal-Mart with the front fork turned backward, but the mechanism of the accident was not understood. I assembled an exemplar bicycle in that manner and measured the toe clearance. With the fork reversed, the toe clearance was insufficient. When Gusman tried to turn left, the knobby tire came in contact with his right toe, stopping the bicycle and causing the fall. Since there was no defect in the bicycle, only in the way that Wal-Martís employee had assembled it, this part of the case was settled.

Bloom v City of Huntington Beach, CA 2006

I assisted Wayne Hunkins of Matison & Margolese, attorneys for plaintiff. Bloom was cycling north on a major arterial and turning left at a signalized intersection. He followed a car turning ahead of him. Partway through the turn he encountered a roughly shaped north-south crack in the roadway that had been there for some years. His front wheel was diverted by the crack and he fell, incurring injuries. The Cityís expert, Gerald Bretting, opined that Bloom should have left sufficient space between him and the car to be able to react to the crack when it appeared from beneath the car. Bretting also offered other possible causes, of which he thought that Bloomís left foot slipping from the pedal was the most likely, as indicated by photos of the injuries to Bloomís left toes and to the right-hand side injuries to Bloomís head and face. Bloom had been wearing flip-flop sandals, and the toe injuries looked like a slash across several toes between the undamaged nails and the undamaged knuckles.

Brettingís scenario was obviously impossible. Any injuries on the top surface of the toe caused by impact or abrasion with the road surface could be caused only if Bloom were already falling face down onto the roadway. In addition, the injuries looked much more like slashes than abrasions, and the knuckles were not injured, as they would be by abrasion against the road surface.

Huntington Beach settled shortly after trial started. 

Sirott v California, CA 2006

I assisted John Howard, attorney for plaintiff. Sirott was cycling along California Hwy 1, the Coast Highway and also a state bicycle route. There were other cyclists using the highway also. The highway was a four-lane concrete highway with asphalt shoulders, and Sirott was proceeding on the shoulder at a descending slope. Sirott came up behind a slower cyclist and, having made sure there was no motor traffic approaching, turned onto the concrete to overtake the slower cyclist. At that location the asphalt shoulder had settled to as much as two inches below the concrete traffic lane, a situation not observed by Sirott. The vertical upstep caught Sirottís front wheel, causing her to fall and become injured.

Caltrans knew of the condition, which violated California standards for bicycle routes, but had done nothing to fix it. Caltrans settled during trial.

Dunn v Hawaii, HI 2006

I assisted Kristine Meredith and Michael Danko of O/Reilly, Collins, and Danko, attorneys for plaintiff. Dunn was riding with friends in the pre-dawn darkness and coolness along the major highway, listed as a bicycling route, around the east end of the island of Oahu. The highway had two lanes for traffic in the cyclists' direction, plus paved shoulder. The cyclists were equipped with legally sufficient headlamps. The cyclists came to a location where the highway department had installed a diagonal row of plastic reflectorized bollards intended to steer traffic to the left lane of the two, but leaving shoulder space that could be used by cyclists. Some of the bollards had been broken off, in each case leaving a black base several inches across and about one inch high. Dunn hit one of these bases without bollards, fell, and was injured.

I testified in deposition that the type of headlamp Dunn had been using was legally sufficient and could illuminate the roadway to the typical extent, but that cyclists riding during darkness had to recognize that they incurred more tire and rim damage because the illumination was insufficient to see all objects large enough to cause such damage. I also testified that acceptance of this risk for items that were present through chance was not acceptance of the risk for items deliberately placed on the roadway, such as these bollard bases. I had not been provided with opportunity to examine Dunn's bicycle, which was examined by another plaintiff's expert and found to have no defects. The opposing expert's deposition was not provided to me until the trial had started, from which I discovered that Dunn had mounted his headlamp so that its beam could not be turned downward to illuminate the road. Therefore, my testimony about the amount of light produced would be irrelevant, and, if asked, I would have to criticize Dunn's conduct in so mounting his headlamp that it could not illuminate the bollard base.  Therefore, I was not asked to testify at trial. Hawaii was found negligent in placing, where cyclists might ride, bollards that left dangerous bases when knocked down.

Prokop vs City of Los Angeles, 2005 to 2007, Superior Court Los Angeles County, Appellate Court 2nd Div.

This should have been a very simple case, but it turned into a complicated legal controversy. The Los Angeles Flood Control District owned a paved road running alongside the Los Angeles River in the neighborhood of Griffith Park, a road sufficiently wide to allow one truck to pass another in the course of river maintenance. This road had chain link fences on each side of it, and its entrances from city streets were closed by similar gates to prevent public use. The City of Los Angeles decided that this road would make a good Class One Bikeway, called a bike path, according to the Streets and Highways Code statute, and so designated it on its Bicycle Transportation Plan and Map. This road would easily exceed the safety design requirements for bike paths in California, which call for a facility designed to highway standards but in miniature. LA boasted on its web site that all of its bikeways met the mandatory California safety design standards. LA spent several million dollars installing street lighting for nighttime use and some other amenities The north end of this Los Angeles River Bikeway is reached from  Victory Blvd, although the gate closing the road to public access was some 100 feet along the road from the connection with Victory. This gate was made of the same material as the chain link fence and was split in the center to form two individual gates, each hinged at its fence end. The road descended on a slight grade from Victory to beyond the gate. LA could easily have modified one panel of the gate to have a smaller panel within it, of the width required by the bikeway safety design standards, that was opened for bicycle traffic, but closable when bicycle traffic was prohibited, as in times of flood. However, LA chose not to do this. Instead, LA cut through the fence on the river side and made a new sharply-curving fenced path to get around the the existing gate pivot post and then rejoin the roadway. This additional path violated the mandatory safety design standards in three ways: it was too narrow, its curves were too sharp, and there was insufficient clearance between the new paving and the new fence. David Prokop, cycling through this gateway, misjudged his distance and hit the chain link fence, some part of which sheared off a large flap of his scalp. Simple case: the three defects of too narrow, too sharp turns, and too close fence combined to cause Prokop's injuries.

LA put up the kind of incompetent defense that is often seen in bicycle cases. A city engineer swore that the bikeway met all standards, though he never said what those standards were. Another city engineer swore that the gateway was not part of the Los Angeles River Bikeway, because that didn't start until the motor gate had been passed (though the bikeway had to start at the public street Victory Blvd, for the public to have lawful access to it). But then LA claimed that it was not obliged to meet any standards at all, because bike paths, despite their safety design standards required by statute, had only the legal status of dirt trails, citing a long string of precedents. Except that these were not real precedents. In cases involving dirt trails used, among others, by bicyclists, judges called these bike paths, despite the fact that years before the Legislature had used that phrase as the official name of Class One Bikeways. Prokop's trial attorney was completely out of his depth at this point. After much trouble, Prokop obtained an appellate attorney and the case went for appeal. Appellate court said that the Judiciary would not correct its own error; that was up to the Legislature.

Valerio vs Cavalier Mobile Estates, 2008, Superior Court San Diego County, CA

I assisted Russell Kohn and John M. Hansen, attorneys for Valerio. Valerio, a middle-aged female schoolteacher, was riding an upright "comfort" bicycle to visit a friend in Cavalier Estates. The nearest entrance to Cavalier was rarely open, and Valerio had never used it, but on this day it was open. This entrance way was a normal asphalt road of two-lane width, normally used only for moving mobile homes. The descending grade was about 10%, and speed berms had been installed at its top and bottom. The bottom berm was well painted and marked, but the top berm was not marked in any way and was approximately four inches high. Valerio was moving at possibly 10 mph when she encountered the top berm, which she did not notice. Valerio fell, landing principally on her right elbow and right face, and incurring injuries. Valerio described her fall as falling forwards. I testified that when her handlebars suddenly and unexpectedly moved upwards, her left hand slipped off, so that her weight on her right arm turned the handlebars and the front wheel to the left, causing a diverting type fall. Basically the case turned on whether or not the unmarked speed berm was easily noticed. Settled before trial.

 

McMahon vs Caltrans, 2008, Superior Court San Diego County, CA

I assisted Scott S. Harris, attorney for McMahon. McMahon was cycling westbound along an arterial road that crossed a freeway. Both the on and off ramps for northbound freeway traffic connected with the lane in which he was cycling, in the form of a divided highway coming from his right and controlled by a traffic signal. McMahon dropped his front wheel into a parallel bar drain grate and was severely injured. Caltrans argued that this drain grate was not in the designated line of travel and was in freeway facilities. I countered this by legally demonstrating that there was no designated line of bicycle travel across the intersection and that McMahon had not reached as far as, and had no intention of entering, the area designated by the Bicycles Prohibited freeway signs, so that McMahon was legally within his rights to choose the course that he did. However, I could not argue that McMahon's course made sense, for it was far to the right of any normal course across the intersection and only entered the drain grate by "curb hugging" when that was uncalled-for. The court took the more reasonable view that the design engineer could not anticipate any cyclist following the course necessary to drop a front wheel into the grate, and therefore dismissed the suit. 

Dudley, Estate of, vs. Towne Air Freight, Indiana

I assisted Roy T. Tabor of the Tabor Law Firm, attorneys for Plaintiff. Dudley was one of a group of cyclists riding in the right-hand lane of a four-lane divided highway, almost flat terrain, in clear daylight. The group was being followed by a box truck that carried the cyclists' supplies. Another truck, operated by Towne Air Freight, came up behind at normal highway speed and collided with the cyclists' truck, pushing that truck forward into the rearmost group of cyclists, killing Dudley and injuring others. Towne's driver was apparently asleep at the wheel. One would think that this case would settle rapidly, but Towne's attorneys hired James Green as a defense expert. Green argued (the appropriate word) that these cyclists were required to be protected by police vehicles with flashing lights, citing his own view of bicycle racing regulations, which of course were inapplicable as this was not a race and probably would not have made this requirement. I wrote two reports, one concerning the accident in terms of standard traffic law and the other evaluating Green's report. My evaluation of Green's report was based on my own bicycle racing experience and on research among high-level bicycle racing officials, with whom I was acquainted, regarding present practices and their written rules. The case settled as the date for my deposition was being negotiated.

 

End

Cases 2000 -  page last changed: 04-Feb-14

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