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Ask Our Lawyer - August 2005

WHEN IS A MOTORCYCLE SEAT NOT A SEAT?

Q: My three year son and I were out riding around the neighborhood the other day. Because he is too short to reach the foot pegs in the passenger seat, I usually sit him in front of me on the gas tank.

Recently a local police officer stopped me and gave me a ticket for riding around with my son right in front of me. He said I was in violation of state law. I don’t think I am. Can you help?

A: Almost all states require that a motorcycle only carries a passenger on a firmly attached and regular seat designed for passenger use. Since the gasoline tank doesn’t qualify under that definition, having the passenger right in front of you on the tank would be considered a violation of the statute.

Additionally, some states such as Indiana have a statute that states the passenger may not be carried on a motorcycle in the position that interferes with the operation or control of the motorcycle or blocks the view of the person who operates the motorcycle.

Since such a passenger can only be carried on a seat then the activity the letter described would also be a violation of that statute as well. Both Illinois and Ohio also require that a passenger be carried on the permanent regular seat attached to the motorcycle. So if you are going to carry a passenger, the only place to put him is on a regular seat and not on the gas tank in front of you.

Q: I’m confused. I’ve been told that you can’t have more than one driver’s license, but isn’t a motorcycle endorsement considered a license? Does that mean that I can’t have a license for my car and for a motorcycle? What happens when I move to a new state?

A: In Indiana, Ohio and Illinois, a new resident is required to acquire an in-state license within a specified period of time. New residents are also required to surrender any license previously held in any other jurisdiction. Holding a license under a false or fictitious name is also a violation.

A person may only hold one license at a time. Endorsements, like the motorcycle endorsement, are not considered a separate license, but are only an additional privilege added to the regular license.

STATE OF ILLINOIS REQUIRES ONE-HANDED MOTORCYCLE RIDING - GO FIGURE!

Q: Can anybody tell me if there is a proper way to use your IPASS (electronic tollway transponder) on a motorcycle if you don't have a windshield? The uninformed [you can choose other words] staff at the Illinois Department of Transportation said to hold it up with your hand.

The guy at the manual booth said it worked in my jacket pocket but when I went through the express lane, it didn't register. Please let me know if there is any way besides gluing it to my forehead.

A: After checking with the IPASS bureaucrats, they tell me the only way for the thing to work is to have a motorcyclist hold it up with one hand while proceeding through the reader area, making sure that the device is facing the right way.

Not exactly the safest method of traveling down the highway, if you ask me, especially since you should have the transponder ready about 3 blocks before the booth. [What about the liability of the State of Illinois for accidents caused by state-endorsed one-handed motorcycle riding?] An alternative possibility would be to get one of the license plate transponders and see if it will mount on the forks or would work in a vertical position.

Although I asked that question, the person I spoke with had no idea if that would work. Neither did they have any alternative solutions. Since these devices are becoming more common, it’s a question we need to find answers to. If anyone out there in the motorcycling world has any experience with making these things work, let me know via our email address and I will pass the information along in a later column.

ROAD HAZARD.ORG AND A.B.A.T.E. LEGAL SERVICES LOOKING FOR SAND DEVILS

The A.B.A.T.E. LEGAL SERVICES team continues to build the Road Hazard program. Recently, we received a Road Hazard notice from a rider who encountered a problem with a roadway that had sand spilled on it from a local mining operation.

As you know, the purpose of the Road Hazard program and its website www.roadhazard.org is to collect information on hazardous roadways, to notify the people responsible for maintaining those roadways so that the roadways can be cleaned up and made safer for motorcyclists and other members of the motoring public. However, we don’t only contact government agencies who are responsible for maintaining the roadways.

If we can determine that the problem is being caused by private companies and individuals, we will contact them as well.

The Notice we received indicated that the sand on the roadway was coming from a local sand and gravel mining operation. We contacted the organization and got a very nice letter back from a member of their management team.

This manager, who was also a member of A.B.A.T.E., appreciated getting our letter and indicated that he had also attempted to address the problem. It turns out that his company is not responsible for spilling the sand and gravel on the roadway but another mining operation up the road. Needless to say, A.B.A.T.E. LEGAL SERVICES and the Road Hazard team is committed to tracking the group responsible for the sand devils and having the problem corrected. We will keep you posted on our progress.

ROADHAZARDS KILL!

The following letter was sent to a newspaper in New Jersey in response to an article about the death of a motorcyclist on I-295. I think it illustrates, quite tragically, the need for the expansion of RoadHazard.org to other states. - Rod

I am writing in reference to your article where a motorcyclist was killed on route 295 (in New Jersey). I am a local resident, and yes, a motorcyclist. My email here is rooted in extreme sadness for the rider and his family (whom I do not know) and also in personal regret that I did not pursue further what I am about to explain.

I started riding again not long ago and use my bike to commute to Pennsylvania almost every day, utilizing route 295 South in the morning and North in the afternoon. I could not believe what I saw on my initial traversing of North bound 295 around exit 16.

There is literally a curb of concrete between the second and third lanes, that if you are unaware of on a motorcycle, could have catastrophic consequences. I believe that is what also happened to the rider in your story. Chances are extremely good that he hit this ridge when he was, as your article states, "changing lanes" around exit 16B.

I sent an email to NJ-DOT via their website back in July 2003. I did not receive any type of response, none what so ever. I followed this communication with a note to the paper, in particular to the gentleman who does a weekly report on traffic alerts in our area (I forget his name). He followed up with a phone call to me and told me he would pass the information onto NJ-DOT. Unfortunately I went no further than this and apparently neither did anyone else. I never heard back from the gentleman at the Times and again never heard anything from the state.

This must be addressed before another rider is killed or seriously hurt. Please let me know what I can do or who I can contact, and if you could do what you can to communicate to the powers that be about this extremely dangerous situation for motorcyclists.

Rod responds: As of now, there is no nationwide program to provide notice to state and local agencies about road hazards, but we are creating one now. As we have explained in prior columns, a governmental entity is generally not responsible for damages arising from hazardous road condition unless they have actual notice of the defect, unless the defect is a design defect or was caused by the governmental entity’s negligence.

Since this may have been a design defect versus an act of Mother Nature or an act of the State, additional notice of the defect may not be necessary to preserve the motorist’s claims, but it may be imperative to saving a life.

While RoadHazard.org has been a phenomenal success in addressing problems in the state where it operates, motorists in other states still need to put the proper agencies on notice of a defect. Only then can the agency be held liable, and only then will they take any actions to address the problems.

My experience is that most agencies are happy to make roads safer and correct unsafe conditions, if we can only make sure they know about the problems. That’s where the RoadHazard program comes in. As I noted earlier, we are working to take the program national. We’ll keep you posted on our progress.

SAY IT AIN’T SO, CHICAGO!

Long time A.B.A.T.E. of Michigan member Peter Posselius was spending some well-earned vacation time and money in the Windy City recently and attending the Blues festival. What happened to him is unbelievable. Remember, here is a biker, Wayne State University educated engineer, tax payer, stakeholder, father, and all-around good guy, who decided to get some pizza at the famous Giordano’s on Rush Street.

It seems that the only place in the world where the city Sanitation Workers can issue parking tickets is in Chicago. Our man Peter parked his Harley in front of the establishment with a special flyer from Giordano’s allowing parking on the sidewalk. This time, it didn’t work.

Peter, while inside, saw a Sanitation Worker giving his bike a ticket. He was willing to take the ticket and chalk it up to the price of a fine pizza. But it didn’t end that way. Apparently, the Sanitation Workers have the ability to call Chicago’s finest and CLAIM that they are in fear of their safety.

And that they did. For the first time in his life, Peter was arrested, booked and his precious Harley was impounded and held for ransom. I forgot to mention that his riding partner, who is very clever, might have mentioned to the Sanitation Worker that he should have been collecting trash, not Harleys. Still, such comments are a far cry from engendering fear of your life, especially coming from a beautiful young 100-pound woman. I will guarantee you that Peter Posselius is not done with the City of Chicago. More to follow later.

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com.

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