Mediation Matters The settlement drift Has cultural lethargy invaded mediation? Where s the sense of urgency? CITY OF INDUSTRY, CA PERMIT 4083

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1 THE MAGAZINE FOR NORTHERN CALIFORNIA PL AINTIFFS ATTORNEYS The Magazine for Northern California Plaintiffs Attorneys Dynamics of cycling cases: From equipment to roadways Build the strongest case for the injured cyclist Nathaniel Leeds The Magazine for Northern California Plaintiffs Attorneys The Magazine for Northern California Plaintiffs Attorneys July 2014 issue Reproduction in whole or The Magazine for Northern California Plaintiffs Attorneys in part without express written permission is prohibited. Copyright 2014 by Neubauer & Associates, Inc. The public entity case for the pedestrian and bicyclist Dangerous conditions of public property. Know the rules Casey Kaufman on Bike Proving the bicycle defect Products liability as the cause of an accident Matt Davis and Tamila Gresham The Magazine for Northern California Plaintiffs Attorneys Mediation Matters The settlement drift Has cultural lethargy invaded mediation? Where s the sense of urgency? Profile Craig Needham Veteran trial lawyer maintains balance in his profession, in life and on the bike No more bike or pedestrian cases? Vision Zero: We can do a better job for everyone Miles B. Cooper LA s new cyclist anti-harassment ordinance Memo to San Francisco: It s a start Josh Cohen Break a leg: Analyzing vehiclepedestrian collisions The anatomy of a vehicle-pedestrian accident John C. Gardiner and Check Y. Kam PRESORTED STANDARD MAIL US POSTAGE PAID PERMIT 4083 CITY OF INDUSTRY, CA Change Service Requested 211 Sutter St., #801 San Francisco, CA Walk like it s safe CACI 411: A pedestrian s reasonable expectation of safety Jeremy Cloyd on Foot JULY2014

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4 Referral and Co-Counsel Relationships Membership Includes FREE Online MCLE One of Nevada s largest and highest rated personal injury law firms I recently co-counseled a serious Las Vegas injury case with Rick Harris and his law firm. Rick s advocacy and skills are extraordinary, and were instrumental in resolving and maximizing our client s multiple-seven-figure recovery. The case was expertly worked up, litigated, and masterfully mediated. Everyone I worked with on Rick s team was outstanding. For either a referral or a co-counsel arrangement, I wholeheartedly recommend Rick and the Richard Harris Law Firm for any Nevada case. ~ Carl Wolf, Esq., Callaway & Wolf Northern California Super Lawyer 2010, San Francisco, California...we re here to help. 4PVUI UI 4USFFU t -BT 7FHBT /7 4 Plaintiff July 2014 plaintiffmagazine.com "7 3BUFE o #BS 3FHJTUFS PG 1SFFNJOFOU -BXZFST t &MJUF -BXZFST PG "NFSJDB --. o %JTQVUF 3FTPMVUJPO 1FQQFSEJOF 6OJWFSTJUZ t.vmuj.jmmjpo %PMMBS "EWPDBUFT 'PSVN 0VUTUBOEJOH -BXZFST PG "NFSJDB t 1SFTJEFOU T $MVC "NFSJDBO "TTPDJBUJPO GPS +VTUJDF 5IF 7FSEJDU $MVC o 1MBUJOVN.FNCFS 2013 RHLF

5 Features The public entity case for the pedestrian and bicyclist Liability and dangerous conditions of public property. CASEY KAUFMAN Dynamics of cycling cases: From equipment to roadways Questions you must ask and steps you must take to build the strongest case for the injured cyclist. NATHANIEL LEEDS Proving the bicycle defect Products liability can be the underlying cause of an accident. MATT DAVIS AND TAMILA GRESHAM No more bike or pedestrian cases? Where do I sign up? Vision Zero and the idea that we can do a better job for everyone. MILES B. COOPER Profile: Craig Needham Veteran trial lawyer maintains balance in his profession, in life and on the bike. STEPHEN ELLISON Break a leg: Analyzing vehicle-pedestrian collisions The anatomy of a vehicle-pedestrian accident, and the evidence you must preserve. JOHN C. GARDINER AND CHECK Y. KAM Vol. 8 No. 7 JULY 2014 Plaintiff is the magazine for plaintiffs attorneys throughout Northern California. Plaintiff is an independent magazine, not affiliated with any legal professional association. We support those who protect the individual s right of access to the civil justice system. Copyright 2014 by Neubauer & Associates, Inc. All rights reserved. Reproduction in whole or in part without written permission is prohibited. PUBLISHER EDITOR Richard J. Neubauer Maryanne B. Cooper, Esq. CONTRIBUTING EDITORS Donna Bader, Esq. Jeffrey Ehrlich, Esq. William L. Veen, Esq. SALES MANAGER Christopher S. Neubauer COPY EDITOR Eileen Goss 6 Plaintiff July 2014 plaintiffmagazine.com ART DIRECTOR David Knopf SUBSCRIPTIONS Jean Booth VICE PRESIDENT - ADMINISTRATION Deborah L. Neubauer Departments About this Issue Important to us, important for your clients As more of us rely less upon cars for getting around town, the safety of cyclists and pedestrians becomes more of an issue. MARYANNE B. COOPER Trial Practice and Procedure Walk like it s safe Using CACI 411 and a pedestrian s reasonable expectation of safety. JEREMY CLOYD Mediation Matters The settlement drift Has cultural lethargy invaded mediation? Where s the sense of urgency? JEFFREY KRIVIS Appellate Reports and cases in brief Duran v. U.S. Bank National Association: New rules for dealing with statistical sampling in class-action litigation. JEFFREY ISAAC EHRLICH Back Story The cyclist anti-harassment ordinance An LA gap-filler for bicyclists? JOSH COHEN (GUEST COLUMNIST) ON THE COVER: Main Photo: Cyclists on Open Road, Daniel Russell Secondary Image: Pedestrians in Crosswalk, Radnatt, ADVERTISING SALES No. California: So. California: Rate card online at Plaintiff is published monthly by Neubauer & Associates, Inc. Mail subscriptions are free to plaintiffs attorneys in Northern California; $50 annually for others. Send requests to SUBMITTING ARTICLES FOR PUBLICATION Plaintiff welcomes your submissions. Articles on all appropriate subjects are considered throughout the year. Query us, or send your completed article as a WordPerfect, Word or RTF file attachment to: Plaintiff Magazine 211 Sutter St., #801, San Francisco, CA Fax POSTMASTER: Change Service Requested Send address changes to Neubauer & Associates, Inc., P.O. Box 2239, Oceanside, CA About this Issue Important to us, important for your clients As more of us rely less upon cars for getting around town, the safety of cyclists and pedestrians becomes more of an issue MARYANNE B. COOPER My family and I live in San Francisco s geographic center, where we can walk to almost everything. Within a five- to ten-minute walk we can visit various parks; pick up our dry cleaning; go to the post office, the library, the movie Maryanne Cooper theater, or a cafe; shop for fresh produce at the farmers market and numerous stores; or enjoy a night out (although with two young children that last entry is rare indeed). We can do all of this without using a car. Plus, we have the added benefit of fresh air and exercise. What s not to like about that? When we need to get somewhere more Miles Cooper quickly, or get to more removed parts of the city, we may combine public transportation with our walking. We also rely on bicycles to grocery shop, take our two-year-old to swim classes across town, and explore the city. Our son has been across the bay on numerous occasions with his dad, using a combination of BART and a bicycle. Walking, cycling and public transportation provide complete freedom from a car-oriented lifestyle. We enjoy that freedom. It s not that we don t have a car. We do. We ve managed to get by with one late-model two-door, which we find we take out less and less often, despite having two young children. The car is used primarily for out-of-town excursions, or for picking up large and heavy items. We don t miss driving. And the kids seem to enjoy our chosen modes of transport ( Train! Train! Train! says our twoyear-old). But protecting loved ones while cycling or walking in the city is as much, if not more, of a concern as being in a car. You don t have tons of metal protecting you if another driver is negligent. It can make for scary times with the hustle and bustle of city life especially with ever-more-distracted drivers who may be assisting children with a DVD player in the back seat, looking at their GPS for directions, or texting a friend about the night s plans. This makes it quite dicey to be a pedestrian or cyclist. When I say dicey, I have in mind the five- and six-point intersections located all over our neighborhood. We live 100 yards from a six-point intersection. Traffic crossing the intersection consists of pedestrians, cyclists and various types of motorized transport. Drivers often seem confused about where to turn and when. It results in chaos. One never feels particularly safe when stepping into the crosswalk. Being in a car to cross the intersection doesn t guarantee safe travel, either. We hear occasional honking, then crunches, from our window. Cars do provide more protection, though, when something goes wrong. Rather than rely on cars as the only form of transport because other modes are too dangerous, we d like to see conditions made safer for those who enjoy being less reliant on cars. One step along that path is for drivers to be held accountable for their actions. This issue of Plaintiff addresses some of the questions attorneys may face when clients are injured by cars while walking or cycling. The articles discuss ways in which plaintiffs attorneys may prosecute these cases, and thereby assist in making it safer for pedestrians and cyclists on the city streets. One article discusses the comparative fault of a pedestrian, and how to handle it when presenting to a jury. Another article addresses the important elements of evaluating bike cases, and how to spot the ones that will likely be uphill battles. The articles provide helpful information for representing clients who have been injured due to defective bicycle products or dangerous conditions of public property. We also have included an article on Vision Zero a program recently adopted by San Francisco which takes a holistic approach to reducing and hopefully eliminating bicycle and pedestrian fatalities. And finally, our guest columnist for Back Story this month discusses LA s experiment with prosecuting malicious drivers who menace cyclists. My husband, Miles Cooper, is our guest co-editor for this month s issue. I asked Miles for his input with this issue because of his enthusiasm for cycling, and his passion for helping those injured while cycling or on foot. We re excited to have put together this first-of-its-kind issue. We have some great subjectmatter experts as authors. Their thoughts can help everyone who handles these types of cases. plaintiffmagazine.com July 2014 Plaintiff 7

6 FUND CAPITAL AMERICA INJURED? GET CASH! OUR LAWYERS ALWAYS REMAIN IN CONTROL OF THEIR CASES The public entity case for the pedestrian and bicyclist Dangerous conditions of public property cause many of the injuries to those on foot or bike BY CASEY KAUFMAN When a vehicle injures a pedestrian or bicyclist, lawyers should always look beyond the driver to explore whether or not a dangerous condition of public property contributed to the incident. A dangerous condition may sometimes be difficult to recognize, and I have never seen a traffic collision report identify one as a concomitant cause of an accident. So it is up to us to identify whether a roadway or other feature was in a dangerous condition, determine how it contributed to the incident, and develop the case through discovery. 8 Plaintiff July 2014 plaintiffmagazine.com In this article, I will first discuss public entity liability basics and then discuss pedestrian and bicyclist matters that commonly include dangerous conditions of public property. Bringing the cause of action Dangerous condition of public property Actions against public entities are not based on common law, but are derived from statute. They may be liable only to the extent allowed by these statutes, and only then in certain conditions. 1 For example, there is no simple negligence cause of action that a person may bring against a public entity. 2 Rather, claims of dangerous condition of public property may only be brought under Government Code section Statutory basis for liability Section 835 provides the following elements for a finding of dangerous condition of public property: 1. The public property was in a dangerous condition at the time of the injury; 2. Plaintiff s injuries were proximately caused by the dangerous condition; 3. The dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; and See Public Entity, Page 10 When my clients need financial assistance prior to settlement to cover their expenses, I trust Fund Capital America to help. Gary A. Dordick, Esq. CAALA Trial Lawyer of the Year CALIFORNIA S PERSONAL INJURY CASH ADVANCE SPECIALISTS Fund Capital America s mission is to serve people in California involved in a Personal Injury accident who find themselves under financial pressure due to unforeseen circumstances that were not their fault. (310)

7 Public Entity, continued from Page 8 a. The dangerous condition was created by a public employee s negligent or wrongful act or omission within the scope of that employee s employment; or b. The public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken corrective measures to protect against the injury. Most public entity cases arise under section 835(b), where the property was in a dangerous condition, was not caused by a specific negligent or wrongful act or omission of an employee, but rather through the intended features of the roadway. For section 835(b) cases, the requisite notice is often the hardest part of the case to prove. It is of no matter how dangerous a roadway feature may be to a pedestrian or bicyclist; if the governing entity had insufficient notice of its dangerous nature, no liability will be found. Section 830 defines dangerous condition as a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. This definition includes two very important parts. First, there is an abundance of opinions that discusses a substantial risk of injury. This topic alone is too broad to tackle in here, but I urge you not to assume that the alleged risk in your matter creates a substantial risk simply because it may have resulted in substantial injuries. For example, a sidewalk defect could cause catastrophic injuries, but if the fall was caused by an upraise of less than three-fourths of an inch in elevation, then that defect will likely be found trivial as a matter of law. 4 Second, note that section 830 creates potential public entity liability if a condition on adjacent property exposes those using the public property to injury. This may greatly increase the scope of liability for public entities, particularly when there are roads owned by two different entities or public roads abutting private property. For example, consider an onramp to a freeway. The streets leading to the onramp are owned, controlled and maintained by the local entity, and the freeway is Caltrans property. If a feature of the local roadway is causing accidents on the onramp, then Caltrans may be held responsible even though the dangerous condition is technically not on their property. See Public Entity, Page Plaintiff July 2014 plaintiffmagazine.com

8 Public Entity, continued from Page 10 Above is the fundamental framework of a public entity claim. The significant differences from common law negligence suits make public entity matters procedurally more difficult to prosecute. Establishing notice pursuant to section 835(b) Notice is an element of the vast majority of dangerous condition of public property matters. Often, notice can best be established through prior accident/ injury history. There are two main sources of this information for incidents that include a vehicle: SWITRS and TASAS. SWITRS, or Statewide Integrated Traffic Records System is a database that collects and processes data gathered from collision scenes. One can obtain traffic BAY AREA MEDIATION SPECIALIST Philip Young, Esq. 40 Years Experience 400+ Cases Mediated Recipient of Judge Pro Tem Award Member of ABOTA For Scheduling: Fax The Alameda, Suite 210, San Jose, CA collision data for free via the online SWITRS resource at iswitrs.chp.ca.gov/. While the information contained on a SWITRS report lacks significant detail, it does provide past reported accidents at a location as well as the parties (i.e. pedestrian, automobile, etc.) and a brief description of the cause of the accident. Certainly, this information can provide a good basis for further discovery. TASAS, or the Caltrans Traffic Accident Surveillance and Analysis System, is not available prior to litigation but is also a very important tool. While it may not be relevant to most pedestrian or bicycle accidents, many non-highway roads have been adopted by Caltrans as traversable highways. For example, portions of Van Ness Avenue in San Francisco from Golden Gate Avenue to the US 101 onramp were adopted by Caltrans in 2000 with Caltrans taking responsibility for the roadbed, and the City and County of San Francisco taking responsibility for sidewalks. When dealing with a TASAS inquiry, remember to specifically request Table C, which is a quarterly data report used to identify high collision concentration areas on Caltrans roads. These documents are important when trying to establish that the government entity in question knew, or should have known, about a particular dangerous condition. Other ways to establish notice are from past lawsuits and citizen complaints. Other types of notice can come from internal communications regarding the particular portion of public property or from maintenance logs. During litigation, this information is relevant to establishing the notice element of section 835(b) and properly produced during discovery. Statutory immunities that protect public entities Just as governmental liability is defined by statute, so are governmental immunities. There are several statutory immunities which are wide ranging and often leave plaintiffs without a remedy. The case law regarding these immunities is vast, so I will give brief summaries of the most important immunities to anticipate. Design immunity Design immunity is one of the broadest and most effective immunities public entities enjoy. This immunity extends to a public entity if the injuries were caused by a feature of an approved design, the design was discretionally approved prior to construction, and there is substantial evidence of the reasonableness of that design. The purpose of design immunity was to prevent juries from analyzing the propriety of the factors that went into any particular design or plan. The easiest way to defeat design immunity is to show that the roadway or other dangerous feature, as it existed on the day of the incident, did not conform to the original designs. Very often, asbuilt drawings show different features than the original designs, rendering this immunity inapplicable. Don t forget to visit the accident scene with a tape measure to make sure that the property in question actually conforms to the design. When a feature that you claim was dangerous is found in an approved design and conforms as well, one can allege that the entity has lost the immunity by virtue of changed conditions. To support a changed condition claim, one must show: 1. The design has become dangerous as a result of changed circumstances; 2. The entity had actual or constructive notice of the dangerous condition that has been created; and 3. The public entity had reasonable time and funds to remedy the condition or, if time or funding was insufficient, that the entity failed to provide adequate warnings to users. 5 Design immunity is usually very hard to defeat. Proper discovery is the key to defend against the anticipated motion for summary judgment alleging this powerful immunity. Failure to provide traffic signals, signs, markings, or devices A condition is not dangerous if the plaintiff merely alleges the failure to provide signs, signals, markings, or devices. 6 This includes traffic and See Public Entity, Page Plaintiff July 2014 plaintiffmagazine.com

9 Public Entity, continued from Page 12 pedestrian control signals, stop and yield signs, speed limit signs, and double line roadway markings. The California Supreme Court has held that cities generally have no affirmative duty to install traffic control signals! 7 This exception to the definition of a dangerous condition appears to be related to the discretionary nature of installing such devices. This immunity is unavailable when the absent warning sign or signal is necessary to warn of a concealed trap. 8 This immunity and the applicability of the concealed trap exception are often at issue in cases where lack of crosswalk markings may indicate to drivers that they have the right of way. Other immunities to note The above immunities are certainly the most prevalent in public entity liability litigation, but others exist that are worth noting. Recreational Immunity Public entities are not liable for injuries that occur when a person is participating in any hazardous recreational activity on public land. 9 A hazardous recreational activity is defined as one that creates a substantial risk of injury to a participant or spectator, including diving, animal riding, boating, skiing, surfing, and tree rope swinging. For perspective, fishing from a canoe has been held to be within the immunity as it is related to boating. 10 Exceptions to this immunity are found when the entity failed to warn of a known dangerous condition not reasonably assumed by the activity s participants, when the public pays a fee to the entity to participate in the activity, when the injury was caused by a negligent failure to properly construct/ maintain any structure, or for recklessness or gross negligence. An additional, but separate, immunity also exists for access roads and recreational trails that provide access to any recreational activity, even those that are not hazardous. 11 Weather Conditions Entities are immune when weather conditions cause injury except when the weather-related hazard would not be reasonably apparent to, or anticipated by, a person exercising due care in their use of the facility. 12 Naturally Occurring Conditions If the public entity has not improved a piece of land (lake, stream, beach, etc.), See Public Entity, Page 16 Doctor Highlights Dr. Robert Aptekar Orthopedist University of Michigan, Ann Arbor - Medical School Stanford University - Residency (Orthopedic Surgery) Former Clinical Professor at Stanford University Boutique is better. If you read the articles in this magazine, you ll know that using medical liens to obtain full, net medical bills on your cases is the best way to achieve max policy limits. At Standard Medical Funding every attorney we work with is designated one contact person in order to facilitate a personal, mutually trusting relationship. Unlike many doctors who hold their own liens or our competitors, Standard Medical Funding takes pride in working with attorneys to get reductions when they re needed. A knowledgable, compassionate and interested orthopedic surgeon. He has a great staff. He is efficient and thorough. Great to have this kind of doctor when you need one. Sue H., Yelp 9/8/2011 Dr. Justin Lo Board Certified in Anesthesiology and Pain Management UCLA - B.S. in Biochemistry University of Rochester School of Medicine UCSF Fellowship, Assistant Professor [Dr. Lo is an] Outstanding health care professional. All the qualities you d want in a doctor. He treated me like I was his only patient. Very detailed explaining procedures... He knew exactly what to do to lessen my pain... Thank you, Dr Lo, for giving me my quality of life back. Scarlet Sayer, Yelp 10/5/ Plaintiff July 2014 plaintiffmagazine.com plaintiffmagazine.com July 2014 Plaintiff 15

10 Public Entity, continued from Page 14 then it cannot be held liable for injuries that result from those natural conditions. 13 Procedure for filing a government claim and subsequent lawsuit The government claims process is a trap for the unwary. Below are a few highlights on timing and form of the government claim. Time to file Six months from date of injury The most important feature is the six-month statute of limitations for injury claims. 14 If one misses the six-month cutoff, there is a rarely-successful late claims process that must be started no later than one year after the accrual of the cause of action. 15 Form of the government claim Many public entities have specially prepared forms that are required for filing a claim, and many of the special forms are only available by calling the entity and requesting a mailed copy. Make sure that you are prepared with the correct form well in advance of the sixmonth limitation. Part and parcel to submitting the correct form is confirming the correct public entity that is liable for the injuries. Availability limited! One essential requirement is that the claim form must describe all of the bases of liability in order to provide adequate notice and opportunity to investigate to the public entity. 16 Failure to state all of the factual circumstances in a claim opens one up for demurrer upon filing the suit. One procedure that has worked well is to file a claim with an attachment that includes the statutory and factual basis along with generalized damages claims. This attachment usually takes form much like a causes of action in a complaint. Once the claim is denied (as most are), it is quite easy to transfer the substance of this attachment to a complaint. Denial of claim By letter or the passage of time In order to file suit in a court of law, a claim must be both filed and denied. Denial may either be by official correspondence or by passage of time. If a public entity does nothing in response to a filed claim, it is considered denied by operation of law on the 45th day after a claim is presented. 17 Filing suit Six months after denial of claim Only after denial of a claim can a plaintiff file a lawsuit against a public entity. The lawsuit must be filed within six months of the denial of claim by operation of law or the mailing of the written rejection. The complaint can generally look like any other complaint, with a few important exceptions. You must include an allegation that plaintiff complied with the claim presentation and rejection procedures. 18 As stated above, you can only allege facts constituting a cause of action that were substantially alleged in the claim. This includes the statutory basis for government liability. Establishing public entity liability Shifting liability to the public entity through evidence of due care of all parties Recall from above that Government Code section 830 requires that the facilities be used with due care in a manner in which it is reasonably foreseeable in order for there to be a dangerous condition. This requirement applies to the injured pedestrian or bicyclist as well as the driver of any vehicle that hits them. Pedestrians must not be jaywalking or be struck while in an unreasonably foreseeable location. For bicyclists, the See Public Entity, Page 18 Don t wait to get connected with personal injury clients! IAM-HURT vanity number, INJURY Website LAWYER and HOTLINE responses will be licensed TM to only one personal injury attorney in any city or state in the U.S. CALL NOW! People remember the phone number when they need a personal injury lawyer. If you want to take it to the next level, then IAM-HURT is the way to go. Tim Bottoro, Vriezelaar, Edgington, Bottoro, Boden & Ross, L.L.P. ERIK L. PETERSON JAMES BOSTWICK Bostwick & Peterson LLP has successfully represented catastrophically injured personal-injury victims in California and Hawaii for over 40 years. We are pleased to report these recent settlements: $11,000,000 neonatal injury settlement $10,700,000 record birth injury settlement $8,000,000 neonatal injury settlement $7,100,000 birth injury settlement $5,000,000 settlement for wrongful death of a minor The majority of our cases are referred to us by attorneys and we gladly pay referral fees. For more information, please visit our website: Fax: Four Embarcadero Center, Suite 750, San Francisco, CA Plaintiff July 2014 plaintiffmagazine.com

11 Public Entity, continued from Page 16 due care requirement poses real obstacles as well. In a common law case, cyclist negligence is an oft-seen affirmative 18 Plaintiff July 2014 plaintiffmagazine.com defense. But in a public entity case an essential element of the dangerous condition claim requires a positive showing that the cyclist was properly using the facilities, i.e., within the law. This is often difficult to do and it may also pose problems with juries that may negatively view cyclists. In addition to proving that your client was behaving appropriately, you must also show that the defendant driver was using the road with due care. A speeding, distracted, or drunk driver is not driving with due care, and this fact can gut a public entity s liability. Therefore, it is very important to establish early in a public entity case that all parties were using the facilities in a reasonably foreseeable manner or at least identify and analyze. An example pedestrian public entity case The unprotected crosswalk Sadly, pedestrian accidents are extremely common and very often result in catastrophic injuries or death. It is our duty to these clients to explore whether a public entity may share responsibility along with the driver. Unprotected crosswalks are a common source of public entity liability. An unprotected crosswalk is a marked crosswalk that is alone on the street without any stop sign or other traffic device protecting it by providing notice to drivers. These types of crosswalks are very dangerous, and public entities have known of the dangers they carry for decades. The danger of these crosswalks comes from two sources. First, the pedestrian feels that they are more protected and more easily seen when in an unprotected crosswalk than when jaywalking. This false sense of security emboldens pedestrians to enter the roadway. You will often hear from clients that they saw the car that hit them, but they incorrectly thought that they were seen and the car was slowing for them. The second danger comes from the driver s point of view. Drivers simply don t see these crosswalks because they don t have the additional warning cues like stop signs and traffic signals. Unprotected crosswalks appear on any kind/size of road and require an increased amount of driver vigilance to See Public Entity, Page 20 BRADFORD S. DAVIS, M.D. & LAW OFFICES OF MICHELS & LEW MEDICAL MALPRACTICE PERSONAL INJURY MARTIN P. WENIZ Verdicts and Settlements Totaling Over 10 Figures. ELIZABETH HERNANDEZ PHIL MICHELS JEROME J. CALKINS Wilshire Blvd. #1300 Los Angeles, CA michels-lew.com JIN LEW OUR TEAM CAALA Trial Lawyer of the Year CAALA Appellate Lawyer of the Year Board Certified Physician President Elect KABA CAALA Board of Governors STEVEN B. STEVENS

12 Public Entity, continued from Page 18 recognize and stop for a pedestrian. Given the proliferation of driving while texting, or otherwise being preoccupied, these types of accidents will likely increase as long as unprotected crosswalks are used. The bicycle case Failure to provide adequate bicycle facilities As bicycle use increases, so do the conflicts between bicycles and other vehicles on the roadway. Public entities have made varying efforts to accommodate for bicycle riders. While one cannot usually claim a dangerous condition existed simply because a roadway lacked bicycle markings, the immunity is unavailable when the markings that are present create a trap. For example, many public entities have utilized sharrows, a shared-lane marking that includes a bicycle and chevron and has been approved by the U.S. Manual on Uniform Traffic Control Devices. 19 According to the MUTCD, sharrows are used to assist bicyclists with lateral positioning on streets with parallel parking, direct cyclists away from car doors as well as narrow streets shared with cars, alert drivers to the existence of cyclists, to encourage safe passing of 112 inches 72 inches 40 inches Shared Lane Marking bicyclists, and to reduce the incidence of wrong-way bicycling. However, one may find sharrows incorrectly placed, funneling the cyclist too close to parked cars, or used on roads that do not meet the MUTCD requirements for use. Don t assume from the fact that a roadway marking is present that it is used correctly. Using a street marking incorrectly can be evidence of the creation of a trap and support a claim for public entity liability. Many municipalities are also experimenting with different markings or bicycle lanes. For example, in San Francisco there are several iterations of dedicated bike lanes, with some painted green and others that use sharrows and traffic dividers. 20 While the intent to protect cyclists should be commended, often there exist unique roadway features that require creative solutions. These unique solutions can create traps, as often the public entity performs little research or investigation before putting the marking on the roadway. Good intentions can lead to unanticipated results and increase the danger to bicyclists. When investigating a potential dangerous condition of public property after a bicycle accident where there are some bicycle-type roadway markings, a deeper investigation is often required to ensure that the markings were used correctly. Conclusion Pursuing a public entity case is not as simple as a common law negligence matter. However, our duty to our clients requires us to fully investigate their case and to recognize when dangerous conditions of public property may have contributed to their injuries. Kaufman Casey Kaufman is an associate at The Brandi Law Firm. He is a member of the California, Arizona, Nevada, Washington State, and Washington, D.C., bars where he represents clients in the areas of elder abuse, product liability, personal catastrophic injury, mass torts, and actions against public entities. He has been recognized by Super Lawyers as a Rising Star since 2009, is listed in Best Lawyers, and is rated AV Preeminent by Martindale-Hubbell. He is a past chair of the CAOC New Lawyers Division and sits on the SFTLA Diversity Committee. Casey lives in Alameda with his wife and two young children. Endnotes 1 Government Code section California Civil Code section 1714 which defines negligence, does not provide for a negligence claim against the government outside the Government Claims Act. See Eastburn v. Regional Fire Protection Auth. (2003) 31 Cal.4th There are other statutory bases of government liability for dangerous condition of public property, but they are irrelevant to the types of personal injury claims discussed in this article. 4 See Fielder v. City of Glendale (2005) 71 Cal.App.3d Cornette v. Department of Transportation (2001) 26 Cal.4th Government Code sections and Paz v. State of California (2000) 22 Cal.4th This exception applies to immunity, but not immunity for specific regulatory signs, signals, and markings. 9 Government Code section Wood v. County of San Joaquin (2003) 111 Cal.App.4th Government Code section Government Code section 831. See Erfurt v. State (1983) 141 Cal.App.3d Government Code section Government Code section Government Code section Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Auth. (2004) 34 Cal.4th Government Code section Chase v. State (1977) 67 Cal.App.3d Section 9C Complete Settlement Solutions A client-centered team to preserve settlements and protect your clients Security: Annuity and U.S. Treasury Bond Funded Structured Settlements Protection: Special Needs Trust Services with Nationwide Network of Trust Officers and Trust Attorneys Growth: Asset Management Medicare Compliance in Liability Cases Medicare Set Aside Accounts with Professional and Self Administration Coordination of Public Benefits with a Qualified Settlement Fund Jane Riley-Pugh WE ARE EXPERIENCED IN MASS TORTS NATIONWIDE Plaintiff July 2014 plaintiffmagazine.com plaintiffmagazine.com July 2014 Plaintiff 21

13 Dynamics of cycling cases: from equipment to roadways Questions you must ask and steps you must take to build the strongest case for the injured cyclist BY NATHANIEL LEEDS As a not-particularly-fast amateur bicycle racer, I often receive calls from fellow cyclists when things go wrong. And, on a bike, when things go wrong they tend to go very wrong. As an avid cyclist, I naturally assume that if there was an impact with a car, there must be liability. Sadly, my clients can rarely count on a jury of my spandex-bedecked-peers; more likely is a juror who was cut off by a cyclist on the way to jury selection. The goal of this article is to walk through some of the dynamics of cycling cases and what you can do to make your case better. I love cars, and hate bikes The first thing to remember about a bike case is that you are unlikely to have the same high-quality physical evidence that you do in automobile cases. When cars collide, they imprint evidence in their bent metal. With a couple of cellphone photos of the vehicle damage, your expert can reconstruct the speeds and impact angles of two cars. Bikes are brittle and they bounce. Significant impacts may leave the bike unscathed; and a minor impact can snap a bike in two. To further complicate the problem of reconstructing a bike collision, bikes are nimble. What this means is that a defendant in a bike case can tell any story they like about how the bike was moving before they hit him (i.e., he darted in front of me; she was going against traffic; they came out from between two parked cars; she was wobbling...). If defense counsel said one of these things about a fellow motorist, the jury would laugh when they say it about a cyclist 6 of the 12 will be nodding their heads. What this means is that much more than with a motor vehicle case, your bicycle case is likely to hinge on your cycling plaintiff s ability to give credible, coherent testimony about what happened. Sadly, many urban cyclists are going to have a hard time appearing credible for reasons that have much more to do with their youth, punk affect and demographics than whether they were in the right. Dumb equipment questions you should ask I was once asked to co-counsel on a case that a colleague had filed. At the first meeting I asked a stupid question: Did your bike have brakes? When the client answered no, I looked for the door. For case-evaluation there are a couple of areas of the bike you should discuss: Brakes: As hard as it is to fathom, many young (and not so young) urban cyclists ride fixed-gear bikes that do not have traditional hand or foot brakes. Do not confuse this set-up with the pedal-brakes common on kids bikes and beach-cruisers. In the fixed-gear set-up there is no freewheel, so the rider can slow down by slowing their legs. But, needless to say, they cannot stop very well. If your potential client was riding a fixed gear bike, consider it a strike against them the jury almost certainly will. Shoes/Pedals: Most serious recreational and commuter cyclists will use some sort of system to lock their feet to the pedals. Most of these systems are easy for most cyclists to clip in, and clip out of. But most may not include your client or his system. People who are not yet comfortable with their pedals can struggle to get in and out of them and while they are struggling with their feet, they can drift dangerously into traffic. And, there are some urban cyclists who like riding with older-style toe-clips. Some race-style toe-clips can be almost impossible to get out of unless you lean against a wall. Cyclists who cannot get out of their pedals do not like to stop and are more likely to run stop signs and red lights. Helmets: Modern helmets often do not look particularly damaged after an impact. This is because a well-designed helmet is sheathed in a flexible plastic shell which prevents the soft foam underneath from sticking to the pavement and snapping the rider s neck. Even if the helmet photos do not look like there is any damage, make sure to keep the helmet (and have your client replace it), because internal helmet damage can be significant even if externally the helmet looks fine. Aerodynamic Bicycles: Serious triathletes and some traditional bike racers will train on special aerodynamic bicycles that allow the rider to get into a very low wind-cheating tuck. The thing you should know about these bikes is that 1) they do not corner well; 2) they do not stop well; 3) they can be very unstable in cross-winds; and 4) the rider s ability to look around can be compromised if they are in a tuck. In other words, people should not be riding specialized aerodynamic bikes in congested areas, and you should be careful about taking a case where someone was. No lights, no problem (maybe) In an urban environment there are a lot of night-time cyclists. Many do not have the legally required lights. This may be foolish on their part, but it is not necessarily fatal to your client s case. As a matter of simple optics, it is often the case that a reflector will give a car a better visual warning about the rider s presence than a light. Why? Because the reflector is going to reflect right back at the driver (a light may be pointed in the wrong direction) and the reflector is always brighter than the reflected light created by the head-lamp light bouncing off of other surfaces. Tail lights on a bike might be good, but it is hard for a bike-light to out-shine a car light. The people who make cycling equipment have realized that reflectors are a cheap way to enhance safety and have started integrating flexible, highlyreflective materials into all sorts of bicycle components and clothing. Places to look for reflective materials are in the sidewalls of tires, shoes, helmets, jackets... In many instances your client may not know how reflective they were. Many advanced reflective materials are no longer obvious in regular daylight. So, you may want to collect your client s clothing, equipment, and bicycle and photograph them with a camera or phone that has a nice, strong flash. Often, you can end up with a photograph worthy of a mediation brief. Dim lights On the other side of the bike-light debate is the increasing availability of STRUCTURED SETTLEMENTS PROPRIETARY ATTORNEY FEE STRUCTURES MEDICARE SET-ASIDES TRUSTS LIEN RESOLUTION John Vaclavik Audrey Kenney Plaintiff July 2014 plaintiffmagazine.com plaintiffmagazine.com July 2014 Plaintiff 23

14 Dynamics, continued from Previous Page low-cost LED-based bike lights. These lights are attractive, low-weight, affordable and completely inadequate for urban cycling use. If a client says, I had a light, you need to learn as much as you can about the light they had. Bike lights range from the dangerously inadequate $20 Knog Frog LED (8.5 lumens) to the stadiumgrade $500 Seca 2000 Race (2000 lumens). Which light your client had can significantly change your case. Also, remember, many cyclists do not think about their rear lights and do not change the batteries when the light becomes dim. You may want your client to bring the light in and make a cellphone movie of how bright it was before the batteries went dead. A higher-quality rear light will have a USB charger, so ask how often your client charges their rear light (I charge mine every day). The (overly) social cyclist For many regular commuters, racers and cycling enthusiasts social media (coupled with GPS and heart-rate devices) has become a part of the cycling experience. And, these people can be very active uploaders and data-gatherers. Far and away the most popular place for people to broadcast their ride accomplishments is on As with Facebook, you need to ask about your client s Strava account and have them make it private, immediately. Just as with any social media, Strava is a rich resource for case development and evaluation. A quick scan of your client s Strava page can reveal how familiar they are with a section of roadway. If your client has ridden through the area where they were hit 500 times (which is not uncommon for some commuters), that fact would tend to suggest that the car had done something unusual. This data can also tell you how popular an area is with cyclists. For example, when this article was written, Strava had recorded 1,842 people with GPS devices had ridden around the Golden Gate Park Polo Fields a total of 213,387 times. This data can significantly undermine a cyclist in the wrong place defense. The Strava data (or any data recorded by an athletic GPS device, or phone running the right software) can also help you explain how your client was cycling on the day when they were hit. Depending on which device and set-up your client had, you can even find out how fast they were going the moment before they were hit i.e., did they really dart in front of Defendant s car, or had they been going a steady 14 to 16 mph for the last five blocks. On the flip side, many clients who are still in a lot of pain cannot seem to help bragging to their friends on Strava about how fast they had been riding. I recently did an intake with a woman who had set the course record on a particular rocky dirt trail about three months after she had been hit by a car. I have no doubt that she was still in pain, but if that pain was not significant enough to keep her from racing her social-media friends, it was not significant enough for a lawsuit. By downloading the individual ride data you can learn whether or not your clients were stopping at stop lights, or how their speed on various sections compared to the speed of an average cyclist. Typically, this data is stored in an XMLtype data format and can be easily read with Excel or a text-editor, like Microsoft Notepad at trial you will need an expert, but for case evaluation it does not take more than 10 minutes to learn to read that data yourself. WARNING: GPS devices do not typically have much on-board data storage and tend to over-write the data on a regular basis. So, make sure to get the device, and either upload the data to a Web site like Strava (which will cache for you), or download it into your own servers before it disappears. The pavement from hell was maintained with the best intentions No discussion of cycling cases would be complete without a discussion of how cities and counties plan for cyclists and then rarely follow through with their plans. In order to get available regional transportation funding; cities, counties, and multi-jurisdictional transit authorities are often required to periodically prepare bicycle transit planning documents. These documents are often prescient in their description of dangerous intersections and pieces of roadway and offer a long list of recommended improvement projects and pavement standards. Make sure to send a public records request for these documents. I have a very thorough public-records request I have developed and am happy to provide the language. Unsurprisingly, the bike-friendly utopias described in the transit-planning documents are rarely fully implemented once the transit authority obtains their grant. I had a case recently where there were over 60 recommended improvement projects; ten years later my municipal defendant had undertaken more than 50 of the listed projects just not the high priority one which would have prevented my client s injury. In addition to not implementing bicycle-friendly projects, many municipalities do a poor job of making road maintenance crews aware of the standards articulated in the planning documents. I recently took the depositions of three PMKs in the road-maintenance, road-engineering, and transit-planning departments of a wealthy bike-friendly city in the South Bay. None of them were aware of the bicycle transit plan adopted by their own city council or the pavement standards articulated therein. In addition to planning documents, cities typically have pavement indexing systems. The goal of these pavement indexing systems is to periodically inspect every roadway for degradation and target funding to repairing roadways which 1) have high motor-vehicle traffic and 2) are showing signs of subsidence, water penetration, or other early warnings of impending structural failure. The uniform metrics used in these pavement indexing systems are often not adjusted for the particular pavement needs of cyclists. For example, a popular See Dynamics, Page 26 Many of our clients have: LEUKEMIA MYELOMA LYMPHOMA OTHER CANCERS BLOOD DISEASES LUNG DISEASES BREAST CANCER SYSTEMIC VASCULITIS LEAD EXPOSURE And other diseases From working in jobs like: MECHANIC PAINTER PRINTER MACHINIST CONSTRUCTION WORKER RAILROAD WORKER SEAMAN FACTORY WORKER And other jobs that use solvents, paints, inks, food flavorings, lead, or other chemicals. We represent children exposed to lead and/or lead paint Specializing in TOXIC TORTS We represent individuals and communities injured or affected by chemicals and toxins We pursue the manufacturers and distributors of chemicals and toxins We also represent non-profit organizations and other community groups pursuing environmental justice against manufacturers of toxins and chemicals in food, consumer goods, buildings, land, and land owners REFERRAL FEES PAID PER STATE BAR RULES For more information, call us or visit us at METZGER LAW GROUP TOX-TORT Tel. 562/ Fax 562/ Plaintiff July 2014 plaintiffmagazine.com

15 Dynamics, continued from Page 24 Essential Online Verdict Reports pavement indexing software system does not factor in road-edge degradation so the bicycle lane can turn into a Paris- Roubaix worthy minefield, and the indexing software can still give the roadway a clean bill of health. This is a known problem with the pavement indexing software used by many Bay Area transit authorities and is a problem which bicycle advocacy groups have been concerned with for the last 20 years. Often you will find criticisms of the indexing systems articulated in the bicycle-route planning documents. Municipal planning documents in non-roadway cases Even if the roadway where your client was riding was pristine, you should still send a public-records request to get the transit planning documents. One of the implicit defenses in many bicycle cases is roads are for cars, why was a bike there anyway? The planning documents will often offer clear, authoritative descriptions of what traffic planners expect of cars (speeds and flow) and cyclists, and bike-conscious features of the roadway which may not be readily apparent to you during your site inspection. At the end of the day, it is always better if your cyclist was doing exactly what transit planners wanted them to do they were in the right, and would have been safe if the defendant had just followed the rules of the road. Nathaniel Leeds handles a broad range of civil cases on behalf of consumers and small businesses, including personal injury, medical malpractice, and business litigation. He started out as a Leeds Merced County Deputy District Attorney. He tried numerous jury trials there, including serious offenses such as thirdstrike felonies, juvenile sexual assaults, and manslaughter. He brings this extensive trial experience to his civil practice. He is a University of Chicago graduate. He received his law degree from the University of California, Hastings, in San Francisco, where he now lives and works. BECAUSE VERDICTS ARE NEWS. Orthopedic Expert Witness Dr. Steven R. Graboff, M.D. Dr. Graboff is a board-certified orthopedic surgeon and forensic-medicine specialist offering: 26 Plaintiff July 2014 plaintiffmagazine.com Orthopedic medical-legal consultation Medical exam of client Review of medical records and radiologic studies Expert testimony at mediation, arbitration and trial Flexible schedule for medical exams, meetings, depositions and telephone conferences Unparalleled experience: Supporting the Medical Legal Community for Over 20 Years (714) Huntington Beach, CA Get the attention your verdict deserves Verdict alerts are sent by to 11,500 California trial attorneys in both Northern and Southern California. Each case summary includes a link to the full verdict report on our Web site. Report your verdicts Unlike traditional print verdict reporters, we will send a verdict alert as soon as practical. It s a 24-hour news cycle. Why should verdicts be any different? Sign up it s free There is no charge to receive the verdict alerts or for viewing the full verdict reports. Go to the Web site and add yourself to the list. From the publisher of Plaintiff Richard Neubauer, Publisher Jean Booth, Editor So. California No. California

16 manner; or (2) the risk/benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design. (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000 [citations and internal quotation marks omitted].) A strong working knowledge of both bicycle mechanics and the sport of cycling will help to identify possible defects in the bicycle or equipment, and how the defect contributed to the plaintiff s injury. The major components of a bicycle include the frame, fork, cranks, pedals, wheels, brakes, neck, handlebars, seat and post, chain and derailleurs. If a defective part is suspected in a bike crash, then that part and all related evidence must be meticulously preserved. No products case can be made without qualified experts. For example, our firm has handled two major injury cases in which the bicycle s fork was found cracked apart after the crash. The chickenand-egg question in each case was whether the fork cracked first and caused the plaintiff to crash, or whether the client crashed first and forces of the crash cracked a non-defective fork. Qualified experts must inspect and evaluate the parts and evidence. Do not conduct any destructive testing until the defense has a chance to comment and participate. These are typically engineers in the fields of design, materials and accident reconstruction. Biomechanical engineers and human factor experts are also sometimes used. Get the video The number of bicyclists has skyrocketed in my hometown of San Francisco and other congested urban settings. Thus more and more accidents are being captured on surveillance video. Have an investigator look for and obtain any such videos the moment you are retained. Don t delay else the video may be erased. Any video will likely be crucial. My colleagues recently settled a products liability case against the maker of a snowboard binding that allegedly failed during a routine run and left our client a paraplegic; the critical evidence was a GoPro video, which showed him suddenly crash for no apparent Proving the defect in a bicycle Products liability can be the underlying cause of an accident BY MATT DAVIS AND TAMILA GRESHAM A bicycle is a human-powered vehicle. A prospective case involving a serious injury to a cyclist should therefore be evaluated and investigated like any vehicle case. The possible causes of a bike accident will generally fall into one or more of the following three categories: The people who operated the vehicles involved in the accident. The most typical case alleges that a motorist negligently operated a car and struck a cyclist. The environment where the accident occurred. A case may be brought against 28 Plaintiff July 2014 plaintiffmagazine.com the entity responsible for a dangerous condition on the roadway that caused the accident. The vehicles involved in the accident. A suit alleging that a defect in the bicycle or the equipment caused the accident. The careful practitioner should consider each possible cause of the client s injury, and be mindful of the possibility that there may be multiple causes. Products liability This article focuses on the third category of lawsuits brought on behalf of injured cyclists, the products liability case. A manufacturer may be held strictly liable for its product if the plaintiff was injured while using the product in a reasonably foreseeable way. In order for there to be strict liability, the product does not have to be unreasonably dangerous just defective. Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn. Defective design may be established under two theories: (1) the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable plaintiffmagazine.com July 2014 Plaintiff 29

17 Defect, continued from Previous Page reason during an innocuous turn. We are currently prosecuting a wrongful death case on behalf of the family of a young cyclist who was run over by a garbage truck, and seven different surveillance videos captured relevant evidence. The chain of production and distribution You should expect a bicycle products case to be defended vigorously and expensive to prosecute. From a business point of view, it would be difficult to justify taking on a bicycle products case when the plaintiff sustained modest or even moderate injuries and damages. Most bicycles and bike parts are made overseas, and so there may be challenges mediation with Jeffrey Krivis Northern California presented by suing a foreign defendant. Coverage may, as usual, also be an issue. An injured bicyclist may bring a strict liability products claim against any business entity in the chain of production and distribution of the allegedly defective product, from the original manufacturer to the distributor to the bike shop. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 627.) Mere participation in the chain of production establishes fault necessary to assert a defendant s liability and all chain participants are held fully responsible for damages caused by a defective product as a matter of public policy. (Id. at 627.) The following is a list of potential defendants in a bicycle products defect case: C ASE M GR. H EATHER R EED: firstmediation.com Northern California C ASE M GR. H EATHER R EED: firstmediation.com The designer and manufacturer of bicycle/part. The entity that specified the materials to be used in manufacture of bicycle/ part. The entity responsible that selected the parts to be incorporated into subject bicycle. The distributor of bicycle/part. The assembler of bicycle/part. The shop that sold the bicycle/part. Finally, do not overlook the possibility of a defect in the bicycling equipment. One of the largest jury verdicts our firm ever obtained came in a case brought on behalf of a cyclist hit by a car coming out of a driveway. It was a low-speed collision, but our client hit his head on the windshield and suffered paralysis and a devastating brain injury. The car driver was woefully underinsured, and the primary defendant at trial was the maker of the bicycling helmet that our client was wearing at the time of the accident. The helmet looked cool, but failed to protect the parts of the head that were the most vulnerable in an accident. The jury awarded an eight-figure verdict against the helmet maker. Matt Davis has been a bicycle enthusiast his whole life and is a partner at Walkup, Melodia, Kelly & Schoenberger. Tamila D. Gresham is a third-year law student at Davis UC Berkeley Law School. She is the former student body co-president and an accomplished member of the Berkeley Law Trial Team. Tamila is also the cofounder and CEO of The Box Scene Project, a nonprofit organization working Gresham to achieve equal media representation for marginalized communities. She plans to practice law on behalf of wronged plaintiffs in pursuit of social justice. WESTLAW FORM BUILDER The easy way to streamline your forms assembly. WHAT IF you could automatically REUSE client information In order to draft forms faster So you could move on to other work? Westlaw Form Builder provides quick, easy-to-use document assembly that lets you reuse saved client data on additional forms. All forms are from trusted sources and you ll always have the most current version plus you have free links to WestlawNext from any cited authority. Form Builder helps you finish your forms faster, so you can move on to other work. Discover more at legalsolutions.com/formbuilder Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters Thomson Reuters L /2-14 CARMEL/MONTEREY C ASE M GR. H EATHER R EED: Plaintiff July 2014 plaintiffmagazine.com

18 No more bike or pedestrian cases? Where do I sign up? Vision Zero and the idea that we can do a better job for everyone on our streets by reducing fatalities and injuries MILES B. COOPER There s a video short that made the Internet rounds titled, I m on a M-Fing bike. It is a tongue-in-cheek portrayal of hipsters and other overly selfimportant cyclists, including one very angry bike commuter. As I ride to work, I sometimes identify with that anger. Drivers encased in steel frames seem to either not notice me or are purposefully out to get me, not to mention the hell-bent-on-theschedule Muni drivers and dartout texting-instead-of-watching pedestrians. I identify with that rider until I hop into my car. Then, I switch into my driver mentality and despise the cyclists. Their arrogance the few but memorable ones blowing through stop signs, scooting between traffic, and startling me when they appear out of nowhere. The pedestrians are not much better. Then there are the times when I walk. I find the distracted drivers, weaving cyclists, and schedule-chasing buses obnoxious and dangerous. Finally, I sometimes take the bus and my attitude again changes to see all the cars, pedestrians, and cyclists interfering with onward progress. Cars, bikes, pedestrians, buses, trucks we re all busy trying to make our way. We re human, hence not perfect. We re not Google-guided machines (although some of us are looking at Google maps while we go part of the problem). 32 Plaintiff July 2014 plaintiffmagazine.com Our cars and streets were constructed with the idea that we are perfect. Thus, when something goes off the wire a sneeze, a distraction, or a blown tire there is little elasticity in the system to prevent error. I glance down from the windshield to look at my phone for a moment, expecting those around me to follow the rules. If everyone does, it is likely that everything will be okay. But not everyone does all the time. Assume that, at the same time, a pedestrian looks at his phone. He doesn t see the light turn from yellow to red. We re both in the wrong. My car strikes him, my windshield (and his bones) shatters. In that moment, I recognize that the road system we ve accepted, the one where I ve now catastrophically injured someone due to momentary inattention, is flawed. The system s premise is that everyone will behave perfectly and that the default transport method is a car. If someone makes a mistake, the system breaks down. Someone gets injured, or even worse, dies. That someone is usually not the person in the powered steel cage known as a car. Enter Vision Zero, a holistic approach to road-user interaction. As consumer lawyers, we should be aware of and support a program aimed at reducing injuries and death. We should be aware of it because we can be instruments of change to help implement it. Our road design cases improve safety for users out there. Our notable verdicts remind drivers that there s a cost associated with bad driving. What is Vision Zero? Vision Zero is a broad approach to traffic interaction built with that issue in mind that people are not perfect. Its goal zero traffic fatalities. Its approach? That traffic is a system that needs elasticity built in for human error. Here are some of its key components: Street design, including traffic calming Better streets start with better interaction. One of the ways to do this is by providing safe havens for those not protected by steel. In urban environments, a phrase frequently used is traffic calming. What does this mean? Slowing vehicle traffic down where it directly engages the unprotected. We re not talking about freeways. But what about a four-lane-wide city arterial near an elementary school where the road has a theoretic 35 mile-per-hour speed limit but is actually driven at 45-55? Perhaps the road design for what has become a de facto freeway should be revisited. How is that done? A variety of ways. One example that is becoming increasingly common is the bulb-out. This is a sidewalk extension from a corner into a roadway a bulb that usually extends as far out as the parking along the road. Drivers still have the same amount of road available. But the psychological pressure of the bulb something that has to be navigated slows down traffic. It also shortens crossing distances and reduces the speed at which a right turn is navigated. Another example is called daylighting. This involves extending the open area around a corner so pedestrians and drivers have longer sight lines and can see each other with more time to react. Daylighting has its detractors since it usually means removing the closest parking space to the corner. These two examples are simple. Busy cities have been looking at other more involved measures, including protected bike lanes. Protected bike lanes separate the cars from bikes with physical barriers. A distracted driver or cyclist can drift into or out of an unprotected bike lane with catastrophic consequences. But a physically separated bike lane means someone drifting bumps a curb or other barrier instead of causing a carbike tangle. Education Educating road users is another important area. One example: the educational programs offered by the San Salty Sez TM B ERSCHLE R. c o m Francisco Bicycle Coalition to cab, shuttle, and truck drivers in San Francisco. Most people, professional drivers included, spend the majority of their road time behind the wheel. Helping them shift their focus by looking at how a pedestrian or bicyclist uses a road helps prevent incidents. Some programs even get professional drivers out on the road as cyclists so they can shift their focus. Changes to the law Statutory changes also help. Unfortunately, carrots only yield so much change sticks are needed as well. California s Legislature is looking at two statute changes this year that fall within this realm. One is a vulnerable road-user law. The idea is that cyclists and pedestrians are more exposed to injury than car Failing to refer to or associate with a Maritime Lawyer in any boating-accident case is like going to sea without a chart and compass: too many detours, too long a voyage and you can hit a reef. A R N O L D I. B E R S C H L E R ATTORNEY AT LAW i n f b e r s c h l e r. c o m Lawful referral fees paid. Member of the Maritime Law Association of the United States plaintiffmagazine.com July 2014 Plaintiff 33

19 Vision Zero, continued from Previous Page drivers, thus drivers who strike them must face higher penalties. The second is increasing the penalty for hit-and-run drivers, including automatic drivers license suspensions. Cities are also taking action. Los Angeles is experimenting with an anti-harassment ordinance for cyclists you can read more about this in Josh Cohen s piece in this issue. Enforcement This is another stick category. Datadriven enforcement is critical to reducing incidents. What does this mean? Cities lack the resources to place a traffic officer at every intersection. Cities collect injury and fatality data though. Side note if you re curious about past reported incidents for a location, you can use the Statewide Integrated Traffic Records System. Veteran lawyers may remember having to send a letter requesting data. The data is now accessible online, although it can be cumbersome to tailor to your needs. More at iswitrs.chp.ca.gov. Cities collect this data for many reasons. One is to identify and improve the locations with the greatest number of traffic injuries and fatalities. Enforcement at those locations is the best way to use the limited traffic enforcement resources available. People are quick to spread the word that bad behavior will result in substantial fines. Vehicle design changes Car companies design two different cars: One for the European market; the other for the U.S. One of the differences the European Union is mandating changes to cars to make pedestrian-auto collisions survivable when they occur at 25 mph or slower. If I had to pick between being a pedestrian struck by a U.S. car and a European car, I d pick the European car any day. The nose and bumper have more give. I m more likely to walk away from the incident. Despite the safety advantage, U.S. regulators have not embraced this change. In a parallel situation, window glazing, it took products-liability actions by skilled products-liability lawyers to force carmakers to move what they knew about vehicle safety into the U.S. market. The time is ripe for similar action. When a badly injured pedestrian case shows up on your doorstep, consider whether the car design played a part in the injury. Implementing Vision Zero Cities are adopting Vision Zero by resolution. Politically it is a no-brainer what politician is in favor of people dying from traffic accidents? By voting to support a Vision Zero principle, cities are taking major steps toward protecting their citizens. There are limits though. Cities lack the authority to mandate vehicle design changes. Some major cities like San Francisco have not let the lack of federal legislation capacity interfere in their actions. San Francisco is known for enacting legislation on toys in Happy Meals and evaluating efforts to mandate kill switches for cell phones sold in San Francisco. Efforts to effect change on car design fall within that area. How we can help We re consumer lawyers. Most readers will rally behind the flag. We got into this field because we want to protect consumers. So how do we help? Get behind the Vision Zero concept. Suggest its implementation if your politicians have not already implemented it. But there s a broader impact available for us. Every case you take has consequences. We are another enforcement avenue. Cars are safer because of the products-liability actions we pursued. Why shouldn t we consider productsliability actions for those injured by them when we know there are safer bumpers and hoods in Europe? Roadway design improves and responds to cases we present when we identify dangerous roadways. Automotive design can similarly be improved. How it helps us A very select minority might say to themselves, Cooper, what are you suggesting? This will mean fewer injured people, fewer cases for us. You can t intend that. It is exactly what I intend. Think about the last trial where you talked about your client and the notion that the client would not want to trade dollars for the pain and loss that client suffered. There are many legal fields available to us. If no pedestrian or cyclist would ever be injured again because of this change, I d happily sign on and switch fields. But the unfortunate fact is that this is a long battle. In the interim, the underpinnings of Vision Zero help us advance our cases. Imagine the impact in the courtroom when you can describe your client as a legally vulnerable road user struck by an inattentive driver. The end Whether you are primarily a driver, cyclist, walker, or public transit taker, there will be times when you use other modes of travel. The implementation of Vision Zero helps us all by reducing the tensions created by multi-modal interaction. It is something we should all strive for and embrace. New! From Plaintiff magazine s Judgments and Collections editor, David J. Cook. Miles B. Cooper is a partner at Emison Hullverson LLP. He represents people with personal injury and wrongful death cases. In addition to litigating his own cases, he associates in as trial Cooper counsel and consults on trial matters. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is a member of the American Board of Trial Advocates. Cooper s interests beyond litigation include trial presentation technologies and bicycling (although not at the same time.) Just published by the American Bar Association I finally wrote my book. This book shows you how people hide their assets and how to reach them... how to topple asset protection schemes, how to collect. David Order online: 34 Plaintiff July 2014 plaintiffmagazine.com plaintiffmagazine.com July 2014 Plaintiff 35

20 Profile: Craig Needham Veteran trial lawyer maintains balance in his profession, in life and on the bike BY STEPHEN ELLISON Balance is the order of the day every day for Craig Needham. Whether it s stabilizing his caseload or weighing the merits of a potential client or steadying himself for a steep incline on his favorite mode of transport his bicycle Needham always strives to maintain equilibrium in his life. Cycling is perhaps the likeliest of metaphors for balance, so it s not surprising that Needham took to the sport with ease and fervor, although it came relatively late in his life. The senior partner at San Jose-based Needham Kepner & Fish has clocked thousands of miles across the United States and Europe on his bike since he started riding in his mid-50s. He s also an avid marathon runner and triathlete. And he does it all not only for his own personal fulfillment, but also to raise money for important causes, as he is a cancer survivor himself. Melanoma, Needham said matterof-factly. My wife saved my life telling me to go to a doctor and check it out, and I did, and fortunately they caught it at Stage 1. Oh, and Needham is a pretty darn good lawyer, too, having logged thousands of hours in the courtroom while trying more than 50 cases to verdict and winning numerous million-dollar awards for his clients. That part of his life along with related work such as mediations and teaching tips the other side of his scale just enough to keep him constantly on an even keel. Where I m at now in my life, I take two months off during the year. When I biked across the country for two months, I learned that my life waited for me, my wife still liked me, the firm was doing great, and I had a great time, Needham said during a recent interview at his San Jose office. I ll be 68 in August; I try to limit myself to five to seven large cases a year, plus assist my wonderful partners, Anne (Kepner), Kirsten Needham (Fish) and Jeff Pickard, on about 60 to 70 cases total in the office. And then there are mediations, which I can control my calendar on by simply saying no. Indeed, turning down cases, he said, is a key part of establishing that work-life balance so many professionals covet. Needham recalled a pivotal piece of advice he heard while attending a lecture early in his career in which the speaker, a prominent attorney, told the audience he never started to make money until he learned how to say no. I had no idea what that meant then, he said. Now I know what he was talking about. You have to be selective and you can t be afraid to tell clients, You have a very tough case here, and I m not willing to take it. And you need to tell them why because once you say yes, it s very hard to get out of later. In fact, you shouldn t try to get out of it once you ve made that commitment to take it. Needham said even today he still has trouble saying no, except to certain areas of plaintiffs law such as medical malpractice and employment cases. And he only recently phased out speaking engagements from his regular workload. Teaching, however, is one of Needham s passions and remains a major part of the professional side of his life. At his alma maters, UC Hastings College of the Law and Santa Clara University, he has taught numerous subjects, including trial advocacy, tort law, mediations and, of course, how to balance and enjoy life. For the better part of two decades, he has been a volunteer teacher at Lincoln Law School, a night school in San Jose. I was asked to give a one-time lecture 18 years ago, he explained, and fell in love with night students, who I have so much respect for because most of them are working, or English is their second language. And I just told myself I need to be here teaching torts. Cycling, law and more Though he considers himself a cycling enthusiast, Needham made a point of saying that s not necessarily what makes him a good lawyer on cycling cases. I think for lawyers who are (athletic), you get a better appreciation for what athletes lose when they get hurt, he said. But when a lawyer says, I m a great cyclist therefore I can handle cycling cases, or I m a pilot, so I can handle airplane cases, that s (BS). I mean, you re a trial lawyer, and you can try anything. I have represented a lot of people (in cycling accidents), and I ve had a couple of death cases involving bicycles, Needham continued. Four years ago, a sheriff s deputy crossed the center divide and hit and killed two cyclists. I handled both death cases. Kristy, the woman, was on her way to the Olympics. She was a world-class rider and she was out in front of the pack. Needham was born and raised in the South Bay. When he was three years old, his mother contracted polio and was in an iron lung, his father split from the country, he said, and Needham and his two older sisters were sent to foster homes. His mother eventually won back custody of the children and moved the family to a house in San Jose, where she required nurses to care for her around the clock. When Needham was in sixth grade, his mother authored a book about living with polio. She died in 1962, when Needham was a junior at Bellarmine College Prep. After he graduated from Bellarmine, Needham attended Santa Clara University, where he was student body president and his interest in law began in earnest. He soon landed at Hastings and in the lecture hall of one of the most influential law professors of the time the king of tort law William Lloyd Prosser. The truth is I had Prosser the first day of law school and fell in love with tort law, Needham recalled. In Needham s second year at Hastings, Prosser sent him to interview at a San Francisco firm, Hoberg, Finger, Brown & Abramson. During the interview, a partner asked Needham why he wanted to be a plaintiffs lawyer as opposed to a defense lawyer. I literally made up an answer on the spot, he said. I told him I d rather be the guy on the white horse going over the hill as opposed to the guy in the foxhole on the other side. And one of the other guys said, You re hired. Proudest moment Needham worked at the Hoberg firm during his last two years in law school, and by that time, he and his wife had two daughters and a small apartment in San Francisco. Upon graduating from Hastings, he left for a stint in the Army at Fort Benning, Georgia, to fulfill his ROTC requirement. When he left the service as a First Lieutenant in 1972, his job at Hoberg was waiting for him, he said, and he continued there for about three more years. Needham made his permanent mark in law just a few years later when a man came to his office in San Francisco and told him he d lost his wife and seven children in the Jamestown massacre. And then I got a lot of those cases, he said. I would say, to this day, the proudest moment I ve had as a lawyer is helping to resolve those cases four years later in an evening settlement conference where I just basically called everybody together because all the assets were being depleted. That was a big deal. In his first million-dollar verdict, Needham won a wrongful death decision against Trader Vic s in the late 1970 s, in a case that involved teenagers who unlawfully purchased alcohol at the restaurant and later ended up killing a man. Those two cases got me going, he said. Needham said his greatest strength in trial is his credibility with juries. I m not flamboyant, I m not a table pounder, he said. I have a saying: I don t believe in good news, I don t believe in bad news, I just believe in news. And that s the way I approach life, and that s the way I approach cases. I think that comes across with jurors. I m not telling them what to do, but I m presenting them with evidence that will compel them to find a verdict in favor of my client. I ve lost my share because I try tough cases and I ve won some, Needham added. Any lawyer who says I ve won all my cases hasn t tried very many cases. Besides his regular caseload, mediations and teaching, Needham for the 36 Plaintiff July 2014 plaintiffmagazine.com plaintiffmagazine.com July 2014 Plaintiff 37

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