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Ask Our Lawyer - April 2011

Lead A Ride Or How To Get Sued Without Really Trying-- Three Golden Rules

Q. I have been asked to lead a ride for the local veteran’s group charity. What should I say to the participants of this ride and can I get sued if something bad happens during the ride? I want to do this, but I would like to know how much trouble I can get into if things do not go as planned.

- ABATE of OHIO member

A. The normal tendency of most experienced riders is to help those with less experience. Regarding the rules for a ride, the following is a good guideline to keep you out of the court house- and from getting sued.

You should assume that all riders have been adequately trained by the state that has issued that rider a license to ride. We all know people who can’t walk well, don’t drive a car well and even more that don’t ride well. Our instinct is to try and help the gyroscopically challenged. However, before a ride is exactly the wrong time to start giving instructions on how to ride. Remember, it is the state’s job to do that with trained instructors. There is a rule of law that places liability on your shoulders if you ASSUME a duty, a duty you may not have had under the law, and then fail to perform that ASSUMED duty properly. So, if you assume a duty of providing additional rules and riding instructions for the ride, you may have just set yourself up for a lawsuit, if they can claim your instructions were inadequate or just plain wrong. Remember all you need to get sued is a lawyer with very little to do with a client that has a filing fee.

HERE ARE THE THREE COMMANDMENTS FOR RIDE LEADERS THAT WILL BEST KEEP YOU OUT OF THE COURT HOUSE AND AWAY FROM THE PROCESS SERVER JOCKEY.

1. RELY ON AND ASSUME THAT THE RIDERS ARE TRAINED AND SKILLED. AFTER ALL, THE STATE HAS SPRINKLED HOLY WATER ON THEM AND PROVIDED THEM A LICENSE/ENDORSEMENT TO RIDE A MOTORCYCLE.

2. REAFFIRM THE OBVIOUS -- ALL RIDERS ARE TO FOLLOW THE RULES OF THE ROAD AND TO OBEY ALL LAWS. DON’T MAKE UP ANY NEW ONES. COMMON SENSE IS YOUR KEY TO SAFETY. THE RIDERS ON THE RIDE ARE THE ONES THAT HAVE TO USE IT.

3. MAKE SURE ALL RIDERS KNOW THE ROAD THAT IS BEING TAKEN TO THE DESTINATION. MAP QUEST TAKES IT OFF YOU --USE IT. IF THE RIDE IS ESCORTED BY THE LAW, PUT IT IN THEIR HANDS AND OFF YOUR SHOULDERS.

P.S. Check your home owners insurance policy. You may have coverage under that policy as a volunteer for a not for profit organization like a veterans group. That may be nice to know, so call your agent.

Abate Versus The Government--Supreme Court To Hear Argument From Us On March 22

Here is the gist: can a state like Ohio, Indiana or Illinois take funds specially collected from motorcyclists for motorcyclists and use those funds for the general public?

On March 22, the Illinois Supreme Court will hear arguments regarding a case near and dear to the hearts of all motorcyclists. On that date, the ABATE lawyers -- I and George Tinkham will register at or before 8:45 a.m. per the Rules of the Court. We will then be ushered into the Supreme Court Chambers. I do not care how many times I do argument before a supreme court, I still feel in awe of our system, especially this part. We will be seated at counsel table. The time of argument will come and the magic announcement of the Court's Bailiff, "All rise, the Supreme Court of Illinois is in session concerning the case of ABATE vs. The State of Illinois, et al." We will be directed to stand as the Justices file into the chambers and to address the Court. Then it will be, as we say down in Wayne County "nut cuttin time," or as the city folks say, "show time." Hopefully, we will be allowed to give our pitch to the five justices, but more likely we will be pelted with questions and interruptions -- a myriad questions like "what about this," "how does this case apply," "what if," "what is your reasoning in this case," etc. My briefing book is over 6" thick with every case and statute cited by all parties. The justices expect us to know them cold, and the pressure will be on. Every eye and ear will be focused on the arguer.

Many have asked whether I get nervous. Probably, but it’s like getting punched in the nose during a fight -- you have more pressing things to worry about other than being nervous. Adrenaline takes over. You have the responsibility to do your very best for ABATE. You have no room for anything else. Sure you are probably nervous, but you do not know it until after the fight is over. By the time the court is done, you have earned your lunch, but probably can't eat, unless you kicked issues and took numbers. You will walk from the chambers and down the steps of the Supreme Court knowing you have done your best for ABATE. And you hope and pray that the Court will do the right thing.

As for the case, here is what our fight is all about: whether a state like Ohio, Indiana or Illinois can take funds collected from motorcyclists for safety training and transfer those funds into the general revenue fund of the state. Our case is an action for mandamus requiring the state to return funds that we say were taken from us (swiped by the then Gov. Rod Blagojevich) in violation of our rights under the 5th Amendment of the U.S. Constitution, Illinois statutes, case law, fairness and common sense among other arguments. The state claims they have the right to do whatever they want with the money collected. They ignore the fact that the money was specially collected from motorcyclists and was to be used for safety training of motorcyclists. The state also ignores the fact that the taken funds were removed from a trust in violation of the trust requirements. We say that a deal is a deal, a promise is a promise, and that the State has to honor its promises like the rest of us in this country. Interestingly, ABATE had problems with the State doing this same thing in the 90's. Once stung, ABATE lobbied for and got a special law creating a special trust so the funds could not be swiped. Even then, the state grabbed the money. I guess desperate people do desperate things. Enough was enough, so ABATE filed this lawsuit. As we have said before, we got our ass kicked in the trial court, we got a split decision in the Appellate Court and now the Supreme Court wants to take a new look at ABATE's arguments. If we do not stand up and stop this now, we will have this problem in every state in the country that assesses special fees on motorcyclists for motorcyclists. We will soon have the Supreme Court's answer.

When A Motorcyclist Can Run A Red Light--After 2 Minutes Or Two Cycles?

Q. We have a stop light in our neighborhood that will not trip with a motorcycle. I have been doing a series of turns to avoid "running the light." We also have a strict police officer in our area. Can I run the light if it will not trip, as doing the series of turns is not practical during rush hour? If I get a ticket, do I have a legal defense to the court? ABATE OF OHIO member.

A. We have received many similar questions over the years from motorcyclists that have have experienced a defective traffic sensing device while on their motorcycle. The law should not penalize anyone that is confronted with defective traffic signal equipment. Even the Magna Carta addressed the right to be free from unreasonable restraints of travel. This right is one of our most basic of rights and a defective signal device is an unreasonable restraint to our right to travel free and unfettered. My stock answer to a question of what to do in those situations of a defective signal is as follows: 1. Move over the sensor with your engine area and try disrupting the "Hall Effect." That is the name of the signal field. Sometimes a magnet on your bike will help with disrupting the signal. 2. If that does not work, count through two cycles. The standard cycle is 60 seconds, SO OUR STANDARD IS 2 MINUTES. 3. After two cycles, look for cops and if you do not see any -- go cautiously through the intersection. Sounds simple, but what if you do get a ticket? Go back to the signal and see if you can duplicate your troubles to a witness. Time the actual cycle so you can give an accurate estimate of the time you waited through two cycles. Take that witness to court or better yet, visit the prosecutor with your evidence and request that he dismiss the charges. Pass the 2 minute standard on to your friends. It may be that we motorcyclists can set a national standard for wait time that the law will find reasonable.

Good Law -- Why Doesn't Every State Have One Like It?

This is the synopsis of HB2860, currently being considered in the Illinois legislature. The proposed bill amends the Illinois Vehicle Code and provides that the driver of a motorcycle, facing any steady red signal which fails to change to a green signal within a reasonable period of time because of a signal malfunction or because the signal has failed to detect the arrival of the motorcycle due to the motorcycle's size or weight, has the right to proceed subject to the rules applicable after making a stop at a stop sign.

This proposed legislation is pending in Illinois and should be the law in all states. I have found seven states that wisely have passed such legislation. It would allow motorcyclists to do the obvious and that is: to go cautiously through a red light when confronted with a contrary signal that will not trigger. Many of us have received citations for failure to stop at traffic signals because a police officer did not understand the issue, did not accept our report, or simply wanted us to do a series of turns on a red light that won't cooperate. I will report in a future article on the seven wise states that have passed this kind of legislation and their experience. Imre Szauter of the AMA is an expert on this matter, so we will ask him to weigh in on the matter and provide his guidance.

Ride Safe and Free,

Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

Call us at (800) 25-RIDER  

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at © 2011, A.B.A.T.E. Legal Services

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