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
WITH DEPOSITION OR TESTIMONY
Payne vs Almaguer, Superior Court, Santa Barbara, California, 2010. I assisted Michael Dolan, Jr, attorney for defendant Almaguer. Kendra Payne was a member of the triathlon team of the University of California at Santa Barbara. She was on a training ride climbing a mountain road behind Santa Barbara, and at the time of the accident had fallen behind her companions and was riding alone. The climb was about 3400 feet altitude gain; the road, for the most part, and certainly near the accident site, was a narrow, twisty two lane road with pavement in bad condition. On the climb, the right-hand side was the high side of the mountain, the left-hand side the drop off to the valley. Payne was overtaken by a truck and trailer driven by Almaguer. Both truck and trailer were loaded with hot asphalt destined for a paving job near the top of the ridge. As is typical of such rigs carrying concentrated loads, the trailer was short but was pulled by a long tongue, so that the length of the rig was about the maximum permitted length, to distribute the axle loads over the greatest length of pavement. Almaguer's rig was followed, but not closely, by another similar rig also carrying hot asphalt for the same job.
As Almaguer's truck overtook Payne, the road had been curving slightly to the right, and then curved slightly to the left. Almaguer's truck was in the left curve when the accident occurred. The trailer was alongside Payne just about where the road straightened between the curves, and was following the truck's movement on the left curve. Payne was crushed beneath the rear tires of the trailer, and died, although her bicycle was not damaged. The second trucker saw the accident as it occurred, and radioed the information to Almaguer. The second trucker stated that he saw Payne falling to her left so that her body fell under the rear tires of the trailer.
The official accident investigation was thorough, and the location was closely identified. At that point, the pavement of the right-hand side of the roadway became particularly bad, with potholes and gravel present. The accident mechanism is obvious. Payne chose to continue across this area rather than stopping. She was in some low gear because of the climb, possibly standing up. Her rear tire spun on the gravel and slipped to the right, following the crown of the pavement, so she fell to the left. This is a well-known type of fall when the surface is slippery. It is clear that Almaguer had no responsibility for the accident. However, Almaguer's record showed felony convictions while there had been enormous newspaper publicity in the local newspaper in favor of Payne, and the local state legislator had started a bill. After opening statements the trial turned into a settlement conference.
McDonald vs CalTrans, Superior Court, San Luis Obispo, California, 2012. I assisted John Howard, attorney for the plaintiff. McDonald was cycling southbound on Cal. 1 near Cambria with a long-term cycling buddy. Cal 1 at this location is part of California's premier coastal bikeway, and is a class 3 bikeway. At this location Cal 1 had a paved shoulder suitable for cycling. McDonald was taking pace from his buddy, close to the shoulder line. They came to a increased up grade and the buddy slowed down. McDonald moved onto the shoulder preparatory to adjusting his speed. The shoulder ended abruptly, with a taper much sharper than allowed by CalTrans's design handbook. McDonald rode onto the dirt and then tried to regain the normal pavement by climbing the up-step between dirt and pavement. The diagonal impact to the up-step disrupted McDonald's steering and he fell, incurring brain injuries that produced permanent serious disability. The trial jury decided that the overly-sharp ending taper of the paved shoulder was not the major cause of McDonald's injury.
Edwards vs JAX, Superior Court, Los Angeles-Long Beach, California, 2013. I assisted John Delis, attorney for defendant JAX. Edwards, an extremely heavy and very strong man, was trying out an Electra bicycle in the parking lot adjacent to the JAX bicycle shop. The bicycle was equipped with a three-speed rear hub. When Edwards stood on a pedal while pulling up on the handlebars, the chain tension caused the right rear axle nut to slip forwards, thus loosening the chain. The further forward movement of the bicycle allowed the loosened chain to come off the rear sprocket and slip around the axle with little friction. This allowed the pedal being stood upon to fall suddenly to its lowest position. Edwards's foot slipped off the pedal and hit the ground hard, injuring Edwards's knee.
Obviously, the combination of Edwards's weight and strength applied more tension to the chain than it was likely to see in normal service. Regardless, the axle nut ought to have been tightened sufficiently to resist that force, and it clearly had not been. However, there was another complication. The maker of the three-speed hub supplied a serrated hub whose teeth would dig into the "drop-out" of the bicycle, thus provided greater resistance against slippage, such as did occur. But Electra, in manufacturing the bicycle, interposed a smooth, flat washer between the serrations and the drop-out, thus preventing the additional resistance to slippage that would be provided by the serrations. Furthermore, Electra completely installed the rear wheel during the course of manufacturing, and shipped the bicycle, as is typical, with that rear wheel still installed in the frame of the bicycle.
The issue concerned the division of responsibility between the bicycle manufacturer, Electra, and the bicycle retailer, JAX. The contract between Electra and its retailers was typical for the industry. It stated that it was the retailer's responsibility to check all the assembly work done by the manufacturer, to tighten any fastener that was not properly tightened, thus implying that the manufacturer expected to deliver products that were not in merchantable condition. The case went to trial, and the jury divided responsibility as 60% JAX, 40% Electra, probably on the argument that JAX had the last opportunity to fix the error.
Cases 2010 - page last changed: 04-Feb-14
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