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  1. #1
    FOG
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    Courts and your right to the road

    I just got my e-newsletter from the League of American bicyclists, and it had a couple of interesting items:

    Cyclists File Amicus Brief to KY Supreme Court
    The League, together with local cycling clubs in Kentucky, today filed an Amicus Brief in the Kentucky Supreme Court to defend a bicyclists’ right to the road. The case arises from a crash in which the driver of a truck pulling a trailer moved back across the path of a bicyclist before passing the rider. The rider’s bike was caught in and dragged under the trailer. The diver admitted in court that he failed to look to see if he was clear of the bicyclist – but the jury ignored this evidence and the judges instruction on the rights of a bicyclist in Kentucky and decided that the bicyclist should have pulled over and stopped to let the driver pass, i.e. they shouldn’t have been there. The case was lost on appeal and is now before the Kentucky Supreme Court. The League filed with the brief with the Louisville Bicycle Club, Ashland Cycling Enthusiasts, Bluegrass Cycling Club, Chain Reaction Cycling Club (Paducah) and Bowling Green League of Bicyclists.


    Illinois Bicyclists Fixin’ to Fix Boub vs Wayne Case
    The League of Illinois Bicyclists and Chicagoland Bicycle Federation are firing on all cylinders to gather support for House Bill 2390, sponsored by Elaine Nekritz (D-Des Plaines) and Randy Hultgren (R-Winfield). This is a compromise bill to finally fix the problems caused by the 1999 "Boub" case in which bicyclists were determined NOT to be intended and permitted users of the roadway in Illinois. This decision has had serious repercussions on the willingness of local governments to take any action to accommodate bicyclists.

    The website is www.bikeleague.org

  2. #2
    Packfodding 3 caloso's Avatar
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    Yes, Merton, and there's a habeas corpus that conclusively establishes the res ipsa loquitor that Justice Jackson raised in his dissent to Coyote v. Acme, Inc. (1937) 432 U.S. 456; cf. I.P. Freeley v. North Wind (9th Cir. 1978) 734 F.2d 345.

    Seriously. Glad to see these advocacy groups actually advocating where it makes the most direct effect.
    Cyclists of the world, unite! You have nothing to lube but your chains!

  3. #3
    You need a new bike supcom's Avatar
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    Merton's on the right track. Check http://www.velonews.com/news/fea/5003.0.html for an interesting discussion on the 'right to travel'.

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    Given the majority's ruling, the only safe bicycle in Illinois is a stationary exercise bike located in one's home or at the gym. ----Illinois State Supreme Court, Boub V Wayne

  5. #5
    EmperorNorton II norton's Avatar
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    Quote Originally Posted by MERTON
    aren't there consitutional amendments that say somethig about wronful imprisonment (resulting from not having the right to transport oneself), and i think this may fall under the interstate commerce clause.

    Merton.....I apologize for encouraging you to work on your E & M (not S & M!)......Forget E & M.......You're a born-again lawyer.....


    Uncle Norton

  6. #6
    Senior Member DieselDan's Avatar
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    I hope you are talking about a civil trial. You can't appeal an aquittal in a criminal trial.
    Bikes use brakes to stop.

    If your bike has breaks, don't ride it.

  7. #7
    Packfodding 3 caloso's Avatar
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    You were right, but it has nothing to do with wrongful imprisonment, so your first statement was confusing.
    Cyclists of the world, unite! You have nothing to lube but your chains!

  8. #8
    Packfodding 3 caloso's Avatar
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    [pedant]

    I did; it should have been an "or."

    [/pedant]
    Cyclists of the world, unite! You have nothing to lube but your chains!

  9. #9
    Ride the Road Daily Commute's Avatar
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    The Kentucky Supreme Court reversed the decision of the court of appeals. It's a very good opinion. You can get a pdf of the opinion from the Kentucky Supreme Court, but I had to do an opinion search for "nollaig." This link might also work.

    I'm often a critic of the LAB, but here they returned to their roots by fighting for the right of cyclists to use the road.

    Here's the full text of the opinion. The formatting is a little weird because I copied it from the pdf:


    NOLLAIG PREVIS
    APPELLANT
    ON REVIEW FROM COURT OF APPEALS
    V .
    2002-CA-1751-MR
    BOURBON CIRCUIT COURT NO. 2000-CI-0051
    RENDERED : NOVEMBER 23, 2005
    TO BE PUBLISHED

    2004-SC-0131-DG
    PETE DAILEY
    APPELLEE
    OPINION OF THE COURT BY JUSTICE JOHNSTONE
    REVERSING AND REMANDING
    On May 29, 1999, Appellant, Nollaig Previs, was riding her bicycle on the righthand
    side of Escondida Road in Bourbon County, when she was approached from
    behind by a vehicle driven by Appellee, Pete Dailey .
    Dailey was driving a pick-up truck
    with an eight-foot bed and camper top that was pulling two flatbed wagons, making the
    total length of the vehicle approximately forty-eight feet. When Dailey first observed
    Previs, she was pedaling up a hill at a speed of approximately one or two miles per
    hour. When Previs crested the top of the hill, Dailey moved his truck over into the left
    lane of the road to pass Previs .

    Assuming he had passed her, Dailey maneuvered his
    truck back into the right-hand lane . As he did so, the handlebars of Previs's bike
    became wedged under the second flatbed wagon . The bike was pulled under the
    wagon and Previs was thrown into a ditch on the side of the road .
    Previs subsequently filed a personal injury action against Dailey in the Bourbon
    Circuit Court seeking damages. A one-day trial was held on November 8, 2001 . The
    trial court denied both parties' motions for a directed verdict, and the case was
    thereafter submitted to the jury, which returned a verdict in favor of Dailey .

    The following day, the trial judge received a telephone call from the jury foreman,
    Jeffery Norkus, who expressed concerns about the jury's deliberations . Norkus
    subsequently drafted a letter in which he alleged that jurors had discussed a matter not
    presented at trial, namely whether a reasonable bicyclist would have pulled off of the
    side of the road to allow a large vehicle to pass. Norkus later gave a similar statement
    in chambers under oath, in which he further stated that to his knowledge there was no
    discussion as to whether Dailey violated his duties . When asked how the ten jurors
    who found for Dailey reached their verdict, Norkus responded, "I cannot speak for them .
    I don't know how they arrived at their conclusion ." Notably, Norkus was not one of the
    ten jurors who found in favor of Dailey .

    As a result, Previs filed several motions, including a motion for a new trial based
    on juror misconduct and a motion for judgment notwithstanding the verdict, as well as a
    motion to alter, amend, or vacate the judgment. All were denied and Previs appealed
    to the Court of Appeals.

    Affirming the trial court, the Court of Appeals acknowledged that "at first blush,"
    the record contained evidence sufficient for the jury to conclude that Dailey had
    operated his truck in a negligent fashion. "it is uncontroverted that [Dailey] had not fully
    passed Previs before directing his vehicle back into the right lane, and he all but
    admitted that he did not look in his rear view mirror when doing so ." (Slip opinion p. 5).
    Notwithstanding, the court held :

    [I]t is still possible that the jury reasonably concluded either that
    [Dailey] was not negligent, or if he was negligent that said
    negligence was not the cause of the collision . Dailey notes that
    Previs was not an experienced cyclist, that she may have
    accelerated while Dailey's vehicle was passing her, and that she
    stated that she did not see him . While much of this is speculative,
    the law required the trial judge to give Dailey every fair and
    reasonable inference from the evidence . In so doing, the trial judge
    properly denied Previs's motion for a directed verdict, and we find
    no basis for tampering with this ruling . For the same reason, we
    conclude that Previs was not entitled to a judgment notwithstanding
    the verdict.

    Id . (Internal citations omitted).

    This Court thereafter granted Previs's motion for discretionary review. For the
    reasons set forth herein, we now reverse the decision of the Court of Appeals and
    remand the matter to the trial court for further proceedings consistent with this opinion .
    Our law is well settled that in ruling on a motion for a directed verdict, the trial
    court is under a duty to consider the evidence in the light most favorable to the party
    opposing the motion, and must give the opposing party the advantage of every fair and
    reasonable inference that can be drawn from the evidence. See Taylor v. Kennedy,
    700 S.W.2d 415 (Ky. App. 1985) . When engaging in appellate review of a ruling on a
    motion for directed verdict, the reviewing court must ascribe to the evidence all
    reasonable inferences and deductions which support the claim of the prevailing party.
    Meyers v. Chapman Printing Co., Inc . , 840 S .W .2d 814 (Ky. 1992) .

    In Lewis v.Bledsoe Surface Mining Co. , 798 S .W .2d 459, 461-62 (Ky. 1990), this Court stated :

    Upon review of the evidence supporting a judgment entered
    upon a jury verdict, the role of an appellate court is limited to
    determining whether the trial court erred in failing to grant the
    motion for directed verdict . All evidence which favors the
    prevailing party must be taken as true and the reviewing court is
    not at liberty to determine credibility or the weight which should
    be given to the evidence, these being functions reserved to the
    trier of fact. The prevailing party is entitled to all reasonable
    inferences which may be drawn from the evidence. Upon
    completion of such an evidentiary review, the appellate court
    must determine whether the verdict rendered is "'palpably or
    flagrantly' against the evidence so as 'to indicate that it was
    reached as a result of passion or prejudice ."' NCAA v.
    Hornung, 754 S .W .2d 855, 860 (Ky. 1988). If the reviewing
    court concludes that such is the case, it is at liberty to reverse
    the judgment on the grounds that the trial court erred in failing
    to sustain the motion for directed verdict . Otherwise, the
    judgment must be affirmed .

    (Internal citations omitted) . See also USAA Casualty Insurance Co . v. Kramer, 987
    S .W .2d 779 (Ky. 1999), and Bierman v. Klapheke , 967 S .W .2d 16 (Ky. 1998).
    Dailey's legal duties as a passing motorist were set forth in jury Instruction No.
    3,(Footnote 1) which provided as follows:

    [I]t was the duty of the Defendant, Pete Dailey, upon the
    occasion about which you have just heard evidence, in driving
    his automobile to exercise ordinary care for his own safety
    and for the safety of other persons using the roadway, and
    this general duty included the following specific duties :

    1 . To keep said automobile under reasonable control;

    2. To drive and keep his automobile on the right-hand
    side of the roadway, and not to pass the Plaintiff on
    her bicycle moving in the same direction ahead of
    him unless the overtaking and passing could be
    completed without interfering with the safe operation
    of the bicycle ridden by the Plaintiff;

    3. After passing the Plaintiff to not drive to the right
    until reasonably clear of her;

    4. To maintain a lookout both to the front and to the
    rear for other vehicles near enough to be affected
    by the intended movement of his automobile ;

    5 . To exercise ordinary care to avoid collision with
    other automobiles on the roadway.
    ______________________________________
    Footnote 1. Instruction No . 3 was based, in part, upon language contained in KRS 189 .340(1):
    "Vehicles overtaking other vehicles proceeding in the same direction shall pass to the
    left of them and shall not again drive to the right until reasonably clear of those
    vehicles ."
    ______________________________________

    Thus, Dailey's legal duty required that he not pass Previs unless he could do so
    without interfering with the safe operation of her bicycle, and that if, in fact, he did pass
    her that he not drive to the right until he was reasonably clear of her.
    Yet, Dailey's own testimony established that he violated this legal duty:
    [I]f I made any mistake, that was it, because if I had looked in my
    rearview mirror, at me making a turn in like this, I wouldn't have
    probably seen Nollaig anyhow . . . . My thought is, when I pass a
    grown person - whether it be a lady or a man - I have no thought
    of trying to protect her . . . . I mean, once I started passing her, I
    felt it would be her obligation to allow me around her.
    (Emphasis added).

    The Court of Appeals commented that Dailey "all but admitted" that he did not
    look in his rearview mirror before maneuvering his truck back into the right lane. To the
    contrary, we are of the opinion that Dailey's testimony is nothing less than a frank
    admission of his failure to ascertain Previs's location . Apparently, Dailey believed that
    it was solely Previs's obligation to make sure he safely passed her. Clearly that is not
    the law. See KRS 189 .340(1). Nor are we sympathetic to Dailey's claim that he had
    no choice but to move back into the right lane so as to avoid a potential collision with
    oncoming traffic . If the terrain was such that Dailey could not see oncoming traffic,
    then he certainly was in violation of his duty to exercise ordinary care for the safety of
    other persons using the roadway. See KRS 189 .340(4) Footnote 2
    _____________________________
    Footnote 2 KRS 189 .340(4) provides:

    No vehicle shall be driven to the left side of the center of the
    roadway in overtaking and passing another vehicle proceeding in the
    same direction unless the left side is clearly visible and free of oncoming
    traffic for a sufficient distance ahead to permit overtaking and passing to
    be completely made without interfering with the safe operation of any
    vehicle approaching from the opposite direction or any vehicle overtaken .
    In every event the overtaking vehicle must return to the right-hand side of
    the roadway before coming within one hundred feet (100') of any vehicle
    approaching from the opposite direction.
    ________________________
    -5-
    In Bierman , we noted :

    In reviewing the sufficiency of evidence, the appellate court must
    respect the opinion of the trial judge who heard the evidence . A
    reviewing court is rarely in as good a position as the trial judge
    who presided over the initial trial to decide whether a jury can
    properly consider the evidence presented . Generally, a trial judge
    cannot enter a directed verdict unless there is a complete
    absence of proof on a material issue or if no disputed issues of
    fact exist upon which reasonable minds could differ.
    967 S .W .2d at 18-19.

    The evidence presented at trial was uncontroverted that Dailey
    had not fully passed Previs at the time he maneuvered his truck back into the right lane .
    Such is a clear violation of Dailey's statutory duties and constitutes negligence per se .
    The Court of Appeals referenced several speculative, self-serving comments by
    Dailey concerning Previs's inexperience with biking and his "belief" that she must have
    accelerated as he tried to pass her, as evidence from which a jury could have
    reasonably found that Dailey was not negligent. In doing so, however, the court failed
    to recognize that Previs's negligence, if any, did not have any bearing on the fact that
    Dailey was negligent as a matter of law. Viewing the facts even in the light most
    favorable to Dailey, the trial court erred in submitting the question of Dailey's negligence
    to the jury, and we must conclude that the jury's verdict absolving him of liability was so
    flagrantly and palpably against the weight of the evidence as to indicate that it was
    reached as a result of passion or prejudice . See Lewis , supra .


    We hold that the trial court should have granted Previs a directed verdict on the
    issue of Dailey's negligence . However, a jury is still entitled to consider Previs's duties
    in operating her bicycle, and apportion fault should it find that Previs was negligent as
    well. The jury was given instructions on both Previs's duties and apportionment, but
    -6-
    was directed not to consider them upon finding for Dailey . On remand, a jury must
    consider these additional issues .

    Our resolution of the first issue renders moot Previs's argument concerning the
    trial court's failure to grant a new trial based upon juror Norkus's allegations of juror
    misconduct. Nevertheless, we agree with the Court of Appeals that the trial court did
    not err in this respect. Previs concedes that it is fairly well settled in this
    Commonwealth that, with few exceptions, a verdict cannot be impeached by the
    testimony of a juror. Rietze v. Williams , 458 S .W .2d 613 (Ky . 1970), overruled on other
    grounds in Centre College v. Trzop , 127 S.W.3d 562, 566 (Ky. 2003); Doyle v.
    Marymount Hospital, Inc. , 762 S .W .2d 813 (Ky. App. 1988) . As noted by the Court of
    Appeals, to allow a juror to single-handedly overturn a verdict after it has been rendered
    "would invite the very kind of mischief the [CR 59 .01 new trial] rule was designed to
    obviate ." Id . at 815 .

    The decision of the Court of Appeals is reversed and this matter is remanded to
    the Bourbon Circuit Court for further proceedings consistent with this opinion .
    Lambert, CJ ; Cooper, Graves, Roach, and Scott, JJ., concur. Wintersheimer,
    J ., dissents without opinion .

    COUNSEL FOR APPELLANT:
    David A. Weinberg
    David A. Weinberg, P.S .C.
    301 East Main Street, Suite 110
    Lexington, KY 40507
    COUNSEL FOR APPELLEE :
    Thomas L . Travis
    Chadwick A . Wells
    Clark & Ward
    World Trade Center
    333 West Vine Street, Suite 1100
    Lexington, KY 40507

    COUNSEL FOR AMICI CURIAE, LEAGUE OF
    AMERICAN BICYCLISTS, LOUISVILLE
    BICYCLE CLUB, ASHLAND CYCLING
    ENTHUSIASTS, INC., BLUEGRASS CYCLING
    CLUB, BOWLING GREEN LEAGUE OF
    CYCLISTS, and CHAIN REACTION CYCLING
    CLUB OF PADUCAH:
    Victor B . Maddox
    Tachau Maddox Hovious & Dickens PLC
    2700 National City Tower
    101 South Fifth Street
    Louisville, KY 40202-3116
    Last edited by Daily Commute; 11-29-05 at 03:26 AM.

  10. #10
    Videre non videri
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    Funny name. Nollaig is Irish for "December" and also "Christmas".

    I also have a hard time imagining someone pedalling at just 1-2 mph. Of course, it's not hard to do, but most people don't, especially not "leisure" riders. They get off the bike and walk instead.

  11. #11
    Conservative Hippie
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    What was the U.S. Supreme Court Case that guaranteed the "Right to Travel"?

    If I remember correctly, and I may not, the decision said something to the effect of the states could regulate the privilege of driving a motor vehicle, but could not prevent people from traveling by other means.

  12. #12
    genec genec's Avatar
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    Quote Originally Posted by CdCf
    Funny name. Nollaig is Irish for "December" and also "Christmas".

    I also have a hard time imagining someone pedalling at just 1-2 mph. Of course, it's not hard to do, but most people don't, especially not "leisure" riders. They get off the bike and walk instead.
    Go out and try to ride 1-2 MPH... it is more difficult than you think... about 6MPH the bike begins to be easier to balance.

    I rather doubt the 1-2MPH.

  13. #13
    Infamous Member chipcom's Avatar
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    Quote Originally Posted by genec
    Go out and try to ride 1-2 MPH... it is more difficult than you think... about 6MPH the bike begins to be easier to balance.

    I rather doubt the 1-2MPH.
    I believe that was the driver's perception of the speed, which is understandable I guess, especially if the cyclist was climbing.
    "Let us hope our weapons are never needed --but do not forget what the common people knew when they demanded the Bill of Rights: An armed citizenry is the first defense, the best defense, and the final defense against tyranny. If guns are outlawed, only the government will have guns. Only the police, the secret police, the military, the hired servants of our rulers. Only the government -- and a few outlaws. I intend to be among the outlaws" - Edward Abbey

  14. #14
    Banned. Helmet Head's Avatar
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    but the jury ignored this evidence and the judges instruction on the rights of a bicyclist in Kentucky and decided that the bicyclist should have pulled over and stopped to let the driver pass, i.e. they shouldn’t have been there.
    Does anyone else see how this is a logical, reasonable and rational conclusion to reach for jurors' minds steeped in pro-motorist cyclo-segregationary thinking - the very mentality that is promoted by segregationary policies supported by much of bicycling advocacy, including LAB's own Bicycle Friendly Community program?


    "The rapidly-growing university town of Davis has a population of 64,300. More than 100 miles of streets with bike lanes [SEGREGATION!], trails [SEGREGATION!], and other bicycle routes combine with quiet streets and thousands of bicycle parking spaces to make a great environment for bicycling. There are more than 25 grade-separated intersections keeping bicycle and motor vehicle traffic movements apart [SEGREGATION!]. "

    First Platinum-level Bicycle Friendly Community Recognized

    If the underlying message of the "Bicycle Friendly Community" program is not Cycling mixed with motor vehicle traffic is inherently dangerous and they should be separated ("apart"), then what is? If that is the underlying message, then is it not logical to hold someone responsible for choosing to participate in an inherently dangerous activity? If the truck driver's attorney's had any sense, they could have used LAB's own website and program to defend the decision of the original jury.

    Luckily for us, the logical implications of the pro-segregationary mentality promoted by bicycling advocacy had not yet permeated the minds of the jury foreman, or the Supreme Court... But the rest of the original jury, the original judge, and the Appeals Court have already been infected.

    How long are the rest of you going to support segregationary facilities and, thus, the associated mentality, before you realize the severe damage this is causing to cycling?
    Last edited by Helmet Head; 11-29-05 at 12:11 PM.

  15. #15
    Senior Member Bruce Rosar's Avatar
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    Quote Originally Posted by CommuterRun
    What was the U.S. Supreme Court Case that guaranteed the "Right to Travel"?
    A State Supreme Court decision that refers to a U.S. Supreme Court decision was mentioned previously in another thread
    Last edited by Bruce Rosar; 12-06-05 at 12:43 AM. Reason: fix a typo
    Humantransport.org: Advocacy on behalf of humans traveling under their own power

  16. #16
    Senior Member
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    Quote Originally Posted by Helmet Head
    Does anyone else see how this is a logical, reasonable and rational conclusion to reach for jurors' minds steeped in pro-motorist cyclo-segregationary thinking
    No.

  17. #17
    Senior Member Bruce Rosar's Avatar
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    Quote Originally Posted by Daily Commute
    I'm often a critic of the LAB, but here they returned to their roots by fighting for the right of cyclists to use the road.
    There's another another thread in which I point out that LAB's brief endorsed the limitation of every cyclist everywhere to the outer "crust" of the road.

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