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Ask Our Lawyer - December 2010

Motorcyclists Are Screwed Again – Towing Protection? How about in your State?

Q: I recently went to see an official at the Illinois Commerce Commission to talk about the legality of towing cars from an apartment complex. I am a tenant and was looking to find out under what circumstances the owners association can tow someone’s car. While talking to the official I asked about motorcycles being towed. She told me that the I.C.C. does not regulate motorcycles being towed like they do with cars. Does this mean that my motorcycle can be towed away much easier than a car then be charged higher rates because they aren't regulated? After speaking with an officer from the Illinois Commerce Commission, he advised me that motorcycles are, in fact, exempt from regulation from the ICC. This is due to the fact that special equipment is needed to tow a motorcycle so towing companies are allowed to charge as they see fit. The exemptions are found under 625 ILCS 5/18, which states that “this Chapter shall not apply to the relocation of motorcycles. Such relocation shall be governed by the provisions of Section 4-203 of this Code.” Section 4-203 does not impose any cost restrictions on towing motorcycles.

– Ron, A.B.A.T.E. of Illinois member

A: Ron, it looks like we motorcyclists were left off the list of protected species in Illinois where the legislature saw fit to protect autos from gouging rates. The protecting statute limits the tow bill for cars but does not apply to motorcycles. It seems the same pirates gouging cars would want to gouge us as well. Now the tow companies in Illinois can do it with a vengeance by saying that the legislature allows them to charge what they want. Indiana and Ohio have not enacted any protections against gouging tow bill rates. Maybe the tow companies are kinder and gentler there.

Getting blasted, and not in a good way

Q: I was traveling on southbound 31 when I saw several DOT trucks with their directional lights flashing. They were spreading chip and seal material on these locations they were repairing. As I moved to the east side lane as directed, I came up behind two semi-tractor-trailers and was "sand blasted" by the semis traveling directly in front of me. Loose material flying all over the place. My motorcycle and protective equipment received over $5,000.00 worth of damages from the sand blasting. Is the state liable for damages caused by neglect of warning traffic of what they are doing?

– ABATE member

A: I believe the State may be liable to you for failure to warn of their hazardous activity. There have been cases where the state was sandblasting bridges and caused damage. I would put them on notice and if they fail to pay you, consider filing your claim in Small Claims court. Some states require you to put the responsible governmental entity(s) on notice per the statute requirements and as soon as 180 days. The legal requirements of notice are very precise, so follow your state statute exactly. Failure to do may result in the loss of your claim.

Ohio update

Last month we told you about ABATE of Ohio member Tim Cookson, who got a ticket when his bike was thrown out of control by a railroad crossing. Here’s the latest in this saga:

Rod,
Well, yesterday I finally had my day in court for my accident a couple of weeks ago. The prosecutor met me in the lobby, we shared evidence, and then her and the trooper meet with the magistrate in the court room to let the magistrate know what to expect. The trooper stated that the only reason I was cited was because I laid the bike down. He further stated that speed was not a factor. The prosecutor objected to the US DOT guidelines because they were not a statute or regulation. The prosecutor argued that the only defense in Ohio is one where immediate emergency action was needed, such as a deer jumping in front of you. Although I cited State v. Burwinkel (2005-Ohio-4153) as opening the door to other factors such as hydroplaning, the magistrate stopped me from reading the pertinent section, saying he can look it up.

The prosecutor made the case that if a car could have made the crossing safely, a motorcycle is no different. That under Ohio law, a motorcycle is the same as a car. The magistrate agreed with the issues I raised, but decided that because I had traveled that road before, I should have been aware of the slippery surface because it had rained earlier. I was fined $25, 2 points, and $95 court cost. I feel somewhat good to have gotten the trooper to acknowledge that the only reason for the citation was because the bike went down. I feel that this was a miscarriage of justice because that State failed to provide any evidence other than the accident of unreasonable control. In other words, if you lay your bike over, you are guilty.

I learned that in traffic court, you are guilty until proven innocent. It is not innocent until proven guilty. I know that we need to educate the courts and the states about the differences between motorcycles and cars. In my case, both the prosecution and apparently the Court agreed that there is no difference. Until we change that perception, the safety of motorcyclist will not be a major consideration in highway design.

I intend to write my State Legislature in hopes of bringing motorcycle safety, in regards to highway design, to the forefront. I am also going to ask them to amend 4511.202 for clarity. If the State wants to make it failure to control, they should strike out the word reasonable, otherwise, make it clear that there needs to be some evidence other than the accident. My advise to anyone else, if you have the money, hire a lawyer. If you can't afford a lawyer, prepare your case the best you can, keep it professional and plead not guilty. The cost is the same as guilty or no contest and you at least get to make your point. Thank you, Tim.

Tim, we are printing your response in our column for all to learn of your experience. If you are so inclined and need assistance in filing a motion to reconsider with the court, call us and we will help.

A Parent Using Common Sense Should Decide?

Graham Ewing, an ABATE of OHIO member, posed the following question to several including ABATE LEGAL.

Q. Please advise me as to what age, in the eyes of the Ohio Laws, it will be legal to transport my child in my sidecar. I had my small child in my sidecar and received a ticket for failing to have him in a child restraint.

A. Graham, I believe that the ticket regarding the restraint issue is improper. I understand your son was restrained in his child seat, and helmeted, for a slow ride along country roads at no more than 30 mph. I see very little difference in that activity than if you had taken your son for a horse and carriage ride. Carriage rides happen scores of times a day in every major city in this country. What about the Amish? Are they required to use child safety seats in their buggies? Where was your son safer – in a seat restrained in a side-car with helmet, or in an open carriage pulled by horses? Or in a small car? Parents have the right to decide, within reason, what is best for the child. In this case, the officer was out of line and the tickets were unwarranted.

When Graham posed the same question to the local Chief of Police, the Chief responded:

I will not give you a definite answer on that. There are many factors involved. ... I guess to use a court term, it would depend on the "totality of the circumstances".

Chief.

Not very informative from the supervisor of the cop who wrote the ticket. If the freaking Chief of Police can’t tell you when it’s legal to have your child in a sidecar under the existing statute, the statute is unconstitutionally vague and needs to be changed.

Breaking up – with your landlord, too

Q: I'm an ABATE member. My ex and I had been living together and just broke up. We signed a lease together on an apartment. I moved out this week and I called my landlord and told him. What do I need to do to make sure nothing comes back on me? Thanks for your help.

A: I understand that you signed the lease as did your ex. That means you have promised to do what the lease says. Unless the lease lets you off the hook when you move out, you are bound by the terms. If your ex fails to pay the rent, you are responsible. If your ex damages the apartment, you may have to pay for the repair. You could ask the landlord to take you off the lease. The worst thing he can say is no. If he says yes, get that in writing. If he says no make sure he has your address and agrees to notify you of any violations of the lease by your ex. If the landlord will not let you off the lease, by all means be on your guard when your ex moves out. There could be issues regarding damage above normal wear and tear. You could be jointly on the hook for that with your ex. Of course, you have rights against your ex for that cost, but that could include litigation and lawyers, unless you ex agrees to hold you harmless and pay.

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 rodtaylor@abatelegal.com. © 2010, A.B.A.T.E. Legal Services

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