Ask Our Lawyer – September 2021

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

DEER STRIKES AND JAY JACKSON SAYS

The Insurance Institute for Highway Safety reports deer-vehicle collisions have been on the rise.  But the good news is that deer crashes have leveled off in recent years, with an all-time high of 1.5 million deer-vehicle collisions in the U.S. causing $1 billion in damage in 2018.  Still, 200 motorists are killed each year and another 10,000 are injured. The average  driver (includes motorcyclists) has a 1 in 116 chance of hitting a deer with their vehicle/motorcycle each year. To put that in perspective you have a one in 15,000 chance of being hit by lightning and a one in 160 chance of being audited by the IRS. Your odds of being involved in a deer accident greatly vary based on what state you’re in, though. In West Virginia, 1 in 38 motorists hit a deer. In Hawaii, it’s 1 in 6,379.  Drivers in Indiana have a 1 in 103 chance of being involved in a vehicle crash with a deer. 

Deer are very active from October through December. Accordingly, there are more Indiana vehicle crashes involving deer during this time of year. Deer are active at dawn and dusk. Deer are social animals, if they could they would show up for our parties.  My point is if you see one, bet your Harley the herd is not far behind, so slow down and look.

Jay Jackson,  Motorcycle Chief Instructor, Emeritus says this about deer hazards.  Disclosure – Some years back, Jay hit a deer on the way to a Miracle Ride meeting the day of the Miracle Ride.  He blames his near death experience on a series of bad judgments.  His deer was following a creek bed and jumped out in front of him as he was about to cross the creek bridge.

            Here are Jay’s thoughts on deer strike avoidance – and he knows what he is talking about – now.  And specifically what he did wrong.  “My motorcycle vs deer experience occurred on Indiana State Road 25 near Wingate and I was running 85mph. A road that I travel frequently, am quite familiar with, and maybe a little “too comfortable” on (translation = complacent). As I was the ONLY vehicle on the road at 4:10am, I was riding faster than I should have been. Especially since it was pitch black, 34 degrees and had just stopped raining. To make matters worse, I was thinking about our responsibilities at the Miracle Ride, rather than concentrating on riding. ALL of these were my fault.

 Inasmuch as this very pregnant doe truly did “appear out of nowhere” (running the creek-bed until jumping up on the road when she arrived at the culvert under the bridge), I’m not sure I could have avoided the crash by merely going slower. However, I certainly could have mitigated the severity of the crash.   I’m tellin’ ya, they ain’t got no ride like that at Disney World.”

DEER AVOIDANCE ACCORDING TO JAY JACKSON

  1. Never out run your vision distance.  At night never run past your headlights.
  2. Never out run your sight distance during the day.  On the interstate you have more sight distance.  But beware of the deer following a creek bed, that suddenly jumps up around the bridge you are crossing.
  3. With wooded areas slow to your braking and vision distance.
  4. One deer means there are more.
  5. If a collision is imminent, brake and collide as slow as possible. Isaac Newton said it best, “hit whatever as slow as possible”.
  6. Finally I will use a Jay Jackson patented term “tuck and cover” as you hit or as I  call it “tuck and cower”.

And don’t forget that you are required to report your deer strike to the police.  Whatever you do, do not approach the deer to render assistance.  Chances are they are still pissed off and are potentially lethal, with or without horns.  Police officers are trained with handling injured deer issues including euthanizing and disposing of the body.

SIGNS AND FREEDOM OF SPEECH MATTERS

Q:      Our local group has an ABATE sign that we want to put up on some property we own. We’ve been told by the local authorities that we can’t. Do they have a legal basis to prevent us from placing a sign on our property? ABATE member.

A:      Let’s make sure that we’re all on the same page. If the sign is one that is of a commercial nature, then the zoning officials have authority to regulate it.  If we’re talking about a sign with an explicitly political message there may be First Amendment protections, but check with the State Office before you launch a political dialog. From the question, it looks like we’re talking about a non-political, non-commercial informational sign.

The definitive case on this subject is from the United States Supreme Court. In City of Ladue v. Gilleo (512 US 43, 1994), the U.S. Supreme Court unanimously held that, while municipalities may regulate sign size and location for certain valid reasons. The court essentially used a balancing test and decided that the individual’s right to express her opinion with a sign outweighed the City’s power to prohibit signs.

The question here, then, is whether the zoning authority has expressed any reason why the ABATE sign should not be allowed. Is there a zoning ordinance prohibiting the sign? If so, has anyone asked for a variance? If not, you should consider that course of action. Often these proceedings are held before the zoning board. The person seeking the variance can present to the board their reasons for the request. Other interested persons can also make presentations, either in support of the variance or against. These interested persons are sometimes referred to in the zoning board minutes as remonstrators. Pursuing the available administrative options may make it easier to win a case in court. Courts are inclined to rule on a case if the plaintiff has exhausted all administrative remedies.

CHASERS AND BITERS

Q:      Everybody in my family loves motorcycles, including our dog.  Sadly she isn’t with us any more because the other day she was running with a motorcycle.  The bike hit her and the rider was tossed over the handlebars. Both the rider and the bike were pretty messed up. Now the rider is suing me. 

A:      Call your insurance agent asap. The number of riders injured by “chasers” has increased dramatically. Most riders cannot appreciate the devastating effect of a “dog strike.” According to the motorcycle safety professionals, there are usually one of two results. The first, best, result is that you are traveling fast enough and the dog is small enough that you play “Evel Knievel” and ride over the top of the dog. Hopefully, you can keep it shiny side up after contact. The other scenario is not so good for you (both are bad for the dog). Let’s say you hit “Mongo the Ox-Dog.” Your front wheel will instantly snap to full left or full right, and you and your bike will go head over wheels down the road. This type of incident is responsible for many serious injuries.  (Long time ABATE member Gary Byers can tell you all about that).

Our ABATE Motorcycle Safety course teaches us to maintain our scan and be on the alert for dogs. Dogs usually attack in a straight line. Riders wary of dogs should anticipate that line, slow down and then, when the dogs get near, gear down and speed away. Unfortunately, this only works if we have picked up the dog in our rider scan.

Dogs are many things to many people, but to all them, dogs are a responsibility. Many localities have ordinances that require that pets be kept under control, and the common law of most states have holdings similar to this one: “The keeper of an animal has a duty to provide for the restraining and confinement of that animal, … and may become liable for damages the animal causes when the keeper is otherwise negligent in the manner of its keeping and control. In such cases, the person in control of the animal is bound to take note of the natural propensities of the type and breed of the animal in question.” Vetor v. Vetor, 634 N.E.2d 513.

If your dog is a known “chaser,” then you have a duty to protect motorcyclists from the dangers of a “dog-strike.” That means that you are responsible for what your dog does, especially if you are aware of the “natural propensities” of the dog, like chasing motorcycles. If you know your dog likes doing certain things, like chasing motorcycles, and somebody gets hurt because your dog was chasing, then you are likely responsible for the damages.

Of course, your responsibilities don’t end at the property line. One of the most prevalent claims arising from dog ownership involves dog bites. Most claims involving dogs will be covered by your homeowners policy. However, insurance companies report that dog-bite claims are rising. Because of that, some insurance companies are cancelling policies for homeowners whose dog has bitten someone. Some companies have even begun cancelling policies (or refusing to write new ones) for owners of particular breeds of dogs, especially Rottweilers and Pit bulls. While few insurance companies admit that they blacklist these types of dogs, those breeds cause insurers to review the file more carefully.

 Responsible dog ownership of all breeds is the key to claim prevention. Factors such as whether the dog is spayed or neutered, properly socialized, supervised, humanely trained, and safely confined, play significantly greater roles than the breed of the dog alone. The best way to make sure your home insurance doesn’t get canceled because of your dog is to make sure it won’t bite anyone and to take reasonable precautions to prevent the dog from getting out of the yard. 

ABATE HAS A NYC TAXI DRIVER FOR A FRIEND

There is an ABATE sticker on at least one New York City taxi cab and I have an admission to make – I’ve never met an NYC taxi driver that I didn’t like. Yes, I have heard all the stories, but here is what I know: they are all citizens or are on work permits legally in the U.S. as part of their taxi license requirements. Most work 60 to 80 hours a week like the one I met, J. Motobustsu [he said call me Mike] was darker that night.

 Originally from Senegal, Africa, he spoke English better than I do, along with French and German and some Senegalese dialects. You would think we would have nothing in common – not so. We have motorcycles and Johnny Cash in common.  His country is full of Kawasaki 100s – the same bike a lot of motorcycle safety programs use for motorcycle safety instruction. After our two-wheel discussion, he looked at me in the mirror and asked [I must have had the look] “do you like Johnny Cash”? I replied that JC was a patron saint of my home county. With that he pulled down his sun visor and revealed about 6 CDs of JC’s greatest hits. Next scene is me, a guy from Senegal, crossing the Tri-Borough Bridge, windows rolled down and “Ring of Fire” playing as loud as he could play it.

If you happen to be in NYC and notice a taxi with an ABATE sticker on the bumper, wave – he is one of us.

Ride Safe.

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. © 2021.

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