Ask Our Lawyer – June 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

YOUR NEVER KNOW WHO YOU’RE GOING TO MEET THAT RIDES – YOUR HONOR?

Got a call from an ABATE of Illinois member wanting to talk about the law concerning grass clippings on roadways. And in our talk mentioned that I had written an article about the laws governing the same.  Namely that Illinois was one of the few states that had a law prohibiting property owners from blowing grass onto the public roadways.  Other states may not have a specific statute barring such practice, but they have appellate court cases holding that such a practice may be deemed negligence if, for example, a motorcyclist went down after losing control on a patch of newly mowed Jimson weeds or the like, and that can have a coefficient of friction comparable to 10w30.

We also talked about the Antique Motorcycle Association and its founder George Tinkham. Nearing the end of the conversation, I learned he had been run over by an 18-wheeler – get this – on a1950’s era Vincent motorcycle.  Talk about bragging rights – well maybe not exactly.  Also learned that he is the owner of not one but two Broughs.  I did not know anything about that bike, including how to pronounce the name (pronounced bruff).   Did not know it then but know it now, those bikes are some of the best ever built and one of the rarest in the world – only about 3k ever built from the 20’s to the beginning of WW2. Learned that Lawrence of Arabia had the dubious distinction of being killed on one of the eight that he owned.

As to some history, George Brough was the perfect motorcycle engineer and his father William E. Brough started making motorcycles in Nottingham England in 1908.

Each Brough was assembled twice. The first assembly was for a fit of the components then disassembled when all the parts were painted or plated as needed. Then the finished parts were assembled a second time. Each motorcycle was test ridden to ensure that it performed as designed, and was personally certified by George Brough. The SS100 model was ridden at 100 mph or more before delivery. The SS80 model was ridden at 80 mph or more before delivery. If any motorcycle did not meet specification, it was returned to the works for rework until it performed properly.

They claim the fit and finish is comparable to a Rolls-Royce car with a price to match. Brough Superior motorcycles have always been rare and expensive as only the wealthy could afford them. Until he died in 1972 you could still send a part back to George and he would fix or remake it for you. That is what you call a warranty.

In 1940, World War II brought an end to production as the factory was engaged with war work, making crankshafts for Rolls Royce Merlin engines which powered the Spitfire and the P-51 fighters. After hostilities had ceased there were no suitable engines available, so the company was dissolved. In 2004, only 1,000 Brough Superior motorcycles still existed. 

Remember the title to this piece above?  Well, the caller turned out to be the newly elected Circuit Court Judge of the 8thIllinois Circuit , Tad Brenner. Judge Brenner: Ride safe, good luck and best wishes on your new position in life from one motorcyclist to another.

 “IT IS NOT MY DOG” DOESN’T WORK IN MANY STATES

Q.   Rod, while riding in Kentucky, out of nowhere a stray dog jumped in front of my bike. I went down hard, was injured and my bike sustained considerable damage. While waiting for medical attention, I learned that the local preacher was feeding and caring for the stray, but was not otherwise securing the dog. He made a big point of saying that he did not own the dog and denied legal responsibility (just like Peter Sellers did), but he did admit to feeding and caring for it. What is the law in this situation?

A.   In my experience, injuries caused by loose dogs are some of the more devastating – hence the reason that many states and counties have enacted laws/ordinances that protect the public. Many riders do not appreciate the dangers of loose dogs running into the path of a motorcycle. I didn’t until I got into the lawyering business. My technique of dog avoidance was to speed around them or nudge them away with my boot – both are bad ideas. Isaac Newton is right, “whatever you hit” hit it as slow as possible.   Here is what you can expect when you hit a dog, even at low speeds of 30 or 40 mph and god forbid you hit one at 50 or 60 mph. Your front tire instantly turns sideways even though you are traveling at lower speeds, and it does this – without a hint of warning, unless you are so good that you hit the dog – dead center. And that almost never happens with the usual collision causing your bike to go head over heels, with you somewhere in the mix. Not good. Most bikers that have not hit a dog assume that you just run over the top of the dog and go on. Not so, unless you’re that one in a thousand and happen to hit the dog with equal pressures on the front tire.

Laws have been enacted in many jurisdictions to protect the public from the dangers of stray dogs on roadways which include responsibility for feeding, caring for and otherwise harboring a stray dog. Even though the intentions are pure, once you undertake the care of a stray, there is a duty in many jurisdictions to make sure the dog does not run loose. In other words, if you start caring for a stray dog, you have to do it right and make sure that the stray you feed does not cause harm to others. Legally it becomes your dog to keep out of the public’s way. Interestingly, cats are off the hook in Illinois – must have had a good lobbyist.

Regulation 90.02 in Kentucky, 510 ILCS 5/2.16 in Illinois, Sec. 955.28 in Ohio and other similar laws around the country, defines the owner of an animal as one “who keeps or harbors an animal or dog, has it in his care, or permits it to remain on or about the premises owned or occupied by him ….” as such “is liable for all damages caused by such animal….” This is so even if a person just cared for the stray dog. No ownership is required. Common sense and lawmakers do not want folks harboring a dog without the legal responsibilities. Accordingly, most communities disallow the Pink Panther, “it’s not my dog defense.

In most cases, home/business insurance policies may provide coverage for your personal injury and property damage to your bike. So if you get hurt by a dog when it runs out in front of you, and the person standing over you seems to know all about the dog but does not want to own up to the responsibility for your injuries, I know a lawyer that knows all about your rights.

TIS THE SEASON FOR POKER RUNS AND GETTING WAIVERS IS A PAIN

Q.   Rod. We are having a Poker Run in the spring. Each year we have more riders and handling the number of waiver documents is becoming more difficult. I have been to rides where they staple a waiver to the front of a legal pad. Participants are then handed the legal pad and are asked to read the waiver and sign on the next available line on the legal pad. This would save us a lot of work. We only need a few waivers and three or four legal size pads to get everyone’s signature. Can we do it this way? P.L.- A.B.A.T.E. of Illinois member

A.   It would beat nothing, but here is what I fear would happen. Judges strictly construe the waiver of legal rights, as they should. Afterall, we are asking a fellow motorcyclist to give up his sacred right to go to court and sue us if we are negligent and cause him harm in exchange for our permission to allow him to go on our poker run. What I fear is that a participant on our poker run would say that he thought he was “merely signing a sign-in sheet” and did not see or notice there was a waiver attached to the front of the legal pad (it may have been honestly folded back so one could sign on the lines of the legal pad). I am not buying that argument but several courts have, and have agreed that the waiver may have been overlooked. Since waivers are strictly construed, many courts would hold that the waiver was ineffective as it was not knowingly signed. In other words, the guy gets off the hook for the waiver he signed, and we may get screwed in any claim/lawsuit. So the better way to accomplish getting a knowingly signed waiver is to have a separate waiver for each participant.

WAIVER OVERSEERS ARE A MUST FOR RUNS

Q.   I was at your seminar presentation put on by A.B.A.T.E. OF Illinois. What is the best way to make sure waivers are properly signed? I have noticed that some people do not sign their true names or they sign it illegibly? A.B.A.T.E. of Illinois member

A.   A waiver overseer should be appointed at all events for which you are requesting a waiver as a condition of participating. The only time we need the signed waiver is when there is an incident. When that occurs, we need someone to go through what may be several hundred/thousand waivers in the hopes that the proper waiver can be identified and produced. Issues concerning legibility can be solved by requiring a printed name below the signature. But what do you do if a participant questions the signature? The solution is simple. A waiver overseer can initial each waiver that is signed during his “shift” and in his presence. That way, I can obtain an affidavit from the overseer that affirms that he saw the person sign the waiver. This is critical to have, in case the validity of a waiver comes into question.

TRESPASSERS ON RIDES AND WHAT TO DO

Q.   Hi Rod, a question came up regarding liability waiver forms for our runs and activities. Question is this: What if a person jumps in on the run (seeing a buddy having fun), crashes the gate or just refuses to sign in? How does the law look at this if the person (God forbid) is harmed in some way during our activity? Is this person “Not trespassing?” Who’s got our back on this one? Or , how do we cover our backside? James Blevins, ABATE of Ohio member

A.   A sign that declares that all participants in the ride must sign a waiver works. Banding is the best way to mark those that have paid and signed the waiver. All others are not authorized (trespassers) and should be admonished to stay clear of the ride/activity. Rides should be escorted by police officers, so a simple gesture from them is usually all it takes. If they stay with the ride and are injured, evidence that all participants were required to sign a waiver will be significant to the court in deciding responsibility, and testimony from the escorting police officer will be helpful in establishing the unauthorized (trespassing) status of the interloper. Recently a California Appellate Court decided a case that may be a good precedent for us. In that case, a couple attended a poker run for several years and signed the required waiver. Then one year, they did not sign the waiver and were seriously injured in a crash on the run. Of course, they sued the run organizers for damages. Interestingly, the court held that there was an expectation of required waivers and held that the couple was bound by it and dismissed the case. While Ohio has not decided a case with those facts, you can bet ABATE LEGAL will be pointing at that California case and arguing that Ohio should adopt such a good rule. Same for Indiana, Illinois, Missouri, and New York as well.

IS IT A-BATE, a-BATE OR UH-BATE?

Q.  We were at an ABATE meeting the other day and the conversation turned to ABATE. Specifically, we were trying to figure out the correct pronunciation of “ABATE.” Do you have any thoughts?

A.  I’ve always wondered about that myself. As I found out when I did the column on what the letters of ABATE stand for, there appear to be as many “official” pronunciations as there are ways to say ABATE. I heard three different pronunciations: A-bate, aBATE, and UH-bate.

However, no matter how you pronounce it, it means brotherhood and community. Take your choice – it’s a Mason-Dixon/north-south kind of thing. My poll says that if you’re south of I-70, you say A-bate; if you are north of I-70, you say uh-BATE, and if you are a pure Yankee blue blood, you say a-BATE.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020.

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