Dangerous Road Conditions Present Hazards. Watch Out!

As the weather starts to improve and cyclists start to get back out on the roads, you may notice that some serious potholes and cracks have developed over the winter. 

With all kidding aside, road hazards can swallow tires, cause flats, and cause a rider to lose control.  As you start to get back out there, keep an eye out for dangerous road conditions.  And, if you see any major hazards, please report them to the local authorities so that they may be repaired as quickly as possible. 

Local municipalities, such as the City of Pittsburgh, and the Commonwealth of Pennsylvania can be liable for injuries and damages caused by defective road conditions.  But, in order for liability to attach, the municipality or state must have prior notice of a dangerous condition and fail to act to correct that condition.

If you are injured while riding a bicycle as the result of a defective or dangerous road condition, you may be entitled to a recovery of medical expenses, wage loss, property damage, and pain, suffering, and inconvenience.  Please contact me for a free initial consultation to discuss your case and explore your rights at (412) 227-9724.  

Please be safe out there.  And, thanks for reading.

Matthew F. Dolfi, Esquire

Dolfi Law PC
1100 Washington Avenue, Suite 206
Carnegie, Pennsylvania 15106
412-227-9724

Website:
www.dolfilawpc.com

Facebook page:
https://www.facebook.com/PghBikeLawyer


Important notice:
The information provided in this blog article is not legal advice.  The information and opinions provided herein are solely for the general interest of the visitors to this website.  The information contained herein is only applicable to general principles of law in Pennsylvania and may not reflect current legal developments or statutory changes in various other jurisdictions.  Therefore, the information and opinions contained in this blog should not be relied upon or interpreted as legal advice.  No aspect of this blog article should be interpreted as establishing an attorney-client relationship between the reader and its author.  Anyone reviewing this article should not act upon any information contained herein without first seeking the advice of legal counsel.  

Search terms: Bicycle accident cases and lawsuits, Bicycle collisions, Bicycle safety, Bike accident lawsuits, Bike accidents, Bike collisions, Risks for bicycle riders, accident attorney, accident lawyer, bicycle, bicycle accident laws, bicycle accident, bicycle accident attorney, bicycle risks, bicycle safety, bike accident, cycling, defective road conditions, dangerous roads, dangerous streets, Pittsburgh, Pennsylvania, Matthew F. Dolfi, Matt Dolfi, Pittsburgh Bike Lawyer, Pittsburgh Bike Accident, lawyer-cyclist, The Lawyer Cyclist, dolfilaw, Dolfi Law PC

It's Time for People on Bikes to Stop Yelling "Clear" at Intersections

When proceeding through an intersection on a group bike ride, it's fairly common to hear a lead rider call out "CLEAR" as an indication that there are no vehicles approaching and that it is safe for other riders (behind the leader) to enter and proceed through the intersection.  Some bike safety advocates actually promote the practice.  

But what happens if a lead rider announces that an intersection is clear when it isn't?  What if someone relies on a lead rider's "clear" call and is struck by a car because the leader misjudged the timing or just didn't see the car?  Can the lead rider be liable to the follower because he or she gave an imprudent "clear" call?  More importantly, if there is a chance that someone could be injured because they relied on the assurances of another rider, wouldn't it be better to avoid that chance altogether?

It's time for people on bikes to stop yelling clear at intersections.  Every rider has a responsibility to ensure that it's safe to cross an intersection.  We all have a duty to assess the risks for ourselves.  If a lead rider chooses to "clear" an intersection, he or she does so at the risk of assuming liability to any rider who is injured due to the lead rider's negligence.  Here is why.  

1.  Pennsylvania's "No-Duty" Rule.           

From a starting point in the analysis, its important to understand that in any negligence case, a plaintiff must establish that another person owed him or her a legal "duty of care."  Once there is a duty of care, the plaintiff has to prove that the other person breached that duty.

In Pennsylvania, strangers do not ordinarily owe each other any duty of care. Rather, Pennsylvania has a general "no-duty" rule which states that a defendant owes no duty to warn, protect, or ensure others against risks that are common, frequent, expected, or inherent in an activity.

As it relates to cycling in a group, the "no-duty" rule is generally going to apply because encountering a vehicle while cycling is a pretty common and disturbingly frequent occurrence.  With that being said, there are circumstances under which liability could arise.   

2.  Creating a Duty of Care Through Conduct.  

As long as one does not behave in a manner that creates a duty of care, there should be no liability.  But what happens when someone takes on the responsibility of clearing an intersection for another rider?  Arguably, that person has created a duty to clear the intersection in a reasonable manner.  In other words, by "clearing" an intersection, a rider may have created a duty where one ordinarily does not exist.  

Pennsylvania courts have acknowledged the legal principle that "one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully."  Individuals normally have no duty to act for the protection of others.  But, if a person chooses to act (and, to be clear, yelling "clear" is an "act"), then that person cannot "act" in a manner that increases the risk of harm to others.  Therefore, if a rider calls "clear" and another rider enters an intersection relying on the first rider's assurances and is injured, a case of negligence may arise.

3.  What the Courts Have Said on the Subject. 

Pennsylvania courts have not yet addressed the "clear" call issue between cyclists.  So, there is no direct guidance on this subject.  However, Pa courts have addressed the question of whether a motorist who waives on another motorist can be liable for contributing to an accident.

In the case of Askew by Askew v. Zeller, the court considered the question of whether a motorist who gave a hand signal to another motorist (i.e., she waived her hand from left to right) could be liable for an accident that occurred when the other motorist made a left-hand turn and was struck by an oncoming car.  Ultimately, the court dismissed the signaling defendant from the case, but only because the court found that her gesture was not the legal cause of the accident.  Rather, the court found that the plaintiff "clearly and unequivocally" admitted that he interpreted the defendant's hand signal "only to mean [that] she would remain stopped" and that he could proceed in front of her.  The plaintiff conceded that he never relied on the defendant's hand gesture as an indication that no other traffic was approaching the intersection.  Thus, under the specific facts and circumstances of the Zeller case, the defendant who made the hand gesture could not be found liable because - in the chain of events of the collision - the defendant's actions were not the legal cause of the plaintiff's accident.      

Despite the dismissal of the defendant in the Zeller case, the court held that it is normally for a jury to determine: (1) the type of signal made by a motorist (e.g., whether the driver was giving an "all clear" signal or simply yielding the right-of-way); (2) what reasonable interpretation could have been given to the signal (i.e., could the plaintiff have reasonably believed that the defendant-driver was giving an "all clear" signal or not); (3) whether or not the signaler's act was negligent under the circumstances; and (4) whether or not the signaler's act was the legal cause of the accident.  Thus, the court held that - given the right circumstances - it would be improper to dismiss a signaling defendant.  For example, if the plaintiff in Zeller had testified that he relied on the defendant's signal as an "all clear," then the court may have allowed the case to go to the jury.

Zeller gives some guidance to cyclists.  If the significance of a hand gesture between two passing motorists is normally a jury question, then the significance of a verbal gesture between cyclists could also be a jury question.  And once a case makes it to a jury, it is possible that a signaling (or, announcing) defendant could be found liable to a plaintiff for injuries and damages sustained in an accident.

4.  The Assumption of the Risk Doctrine.

Assumption of the risk is a defense that is established by proving that the plaintiff voluntarily and knowingly proceeded in the face of a known and obvious danger.  On any group bike ride, people would probably agree that every rider has assumed the (common, frequent, expected, and inherent) risks of the ride.  As a corollary to the "no-duty" rule, application of the assumption of the risk defense is going to depend on the specific facts and circumstances of each case.

Murphy's Law tells us that if something can go wrong, it will.  Although the defenses of "no-duty" and "assumption of the risk" may apply in certain (and perhaps, most) situations, it is undeniable that some factual circumstance exists whereby a lead rider who calls "clear" might be liable to a following rider who is hit by a car at an intersectional crossing because the lead rider created an unexpected situation that the following rider could not have anticipated.

It should also be noted that the status of the assumption of the risk doctrine in Pennsylvania is unclear.  It seems to continue as a valid defense though some courts have recognized that it was abolished by Pennsylvania's comparative negligence act.  

5.  To Clear or Not to Clear - That is the Question.      

On any group bike ride, it is incumbent upon every rider to confirm that the path is clear.  Riders should check - and double check - every intersection regardless of whether another rider tells them that it is "clear." 

But some riders do not do this.  Rather, some riders blindly follow the lead wheel like "bike lemmings."  It is not hard to understand why this happens. 

There can be a "follow-the-leader" mentality in any group.  Consider the concept of a "herd" or "mob" mentality.  Also, a group bike ride necessarily requires communication between riders to: (1) point out road hazards, including ice, bumps, dead animals, pot holes, etc.; and (2) indicate speed and direction changes.  Thus, it can be easy to disengage and zone out - particularly if you are working hard or exerting yourself - and just follow the leader.  But, if you blindly follow the leader into an intersection, you could find yourself in a perilous situation. 

Every rider in a group needs to be responsible for their own safety.  It is incumbent upon each rider to confirm that every intersection is clear before proceeding.  Lead riders can call out obstacles, debris, and general road conditions, but for the safety of everyone in the group, riders should stop yelling "CLEAR" at intersections.  Otherwise, if someone yells "clear," and it's not, that person could be the subject of a lawsuit and (like Zeller) find their name in italics on some cyclist's blog. 


To read more on this subject (which is clearly a hot-button topic), check out the numerous comments from RoadBikeRider.com by clicking here, here, and here.  To summarize, the author narrowed the key issues down to the following "kernals":

• The practice of yelling “clear” is, in fact, pretty widely accepted but varies from place to place. 
• Those who follow the practice do so with the understanding that it remains incumbent upon each and every rider in the group to “look out for themselves” – that a “clear” call is really just a temporal courtesy from the person at the front of the group, at that particular time that they arrive at the intersection, stop sign, etc. When you get there, check for yourself. (Which is exactly the way it works in the groups I ride in: Calls of “clear” continue from the front to the back of the group as riders get to an intersection and “clear it” for themselves.)
• So, the “clear” call really means the intersection is clear for me to cross right now. It’s not meant to be a green light for others. (Just as a call of “car left” may mean there’s still time for the next few riders to safely cross before the car is close enough to be a threat. Again, though, it’s up to each rider to check for himself or herself.)
• Most of this group repeated a refrain I ride by (and taught my son last year when teaching him to drive): Expect all drivers, at all times, to do the stupidest possible thing – and be prepared for it. (Like many of you who ride in urban or suburban settings, especially, I see distracted drivers in many forms on every single ride, no exceptions. I also look both ways, repeatedly, even at green lights, and work hard to stay safe.)
• It seems that most experienced riders follow pretty much the same protocol – and that the issue of calling out “clear” is sort of courtesy window dressing. It’s still an expectation in some (maybe even most) locales, but experienced riders know exactly what it means – and how to approach the situation whether they’re in a “clear-calling” group, or a silent group.
• The best policy (if it’s possible) is to discuss the “rules of the group” before any group ride – and reinforce what any particular “calls” mean (and don’t mean). And to clearly reiterate that each rider is ultimately responsible for his or her own safety on the road.

As most experienced riders know, any group ride can be joined by a new or unexperienced rider.  While the "regulars" may know and practice the "rules of the group," its the unknowing rider who could be subject to the dangers of the "clear" call.  For that reason, its a practice that I think should stop.  What do you think?  

Thank you for reading.

Matthew F. Dolfi, Esquire

Dolfi Law PC
BNY Mellon Center
500 Grant Street, Suite 2900
Pittsburgh, Pennsylvania 15219
412-227-9724

Website:
www.dolfilawpc.com

Facebook page:
https://www.facebook.com/PghBikeLawyer


Important notice:
The information provided in this blog article is not legal advice.  The information and opinions provided herein are solely for the general interest of the visitors to this website.  The information contained herein is only applicable to general principles of law in Pennsylvania and may not reflect current legal developments or statutory changes in various other jurisdictions.  Therefore, the information and opinions contained in this blog should not be relied upon or interpreted as legal advice.  No aspect of this blog article should be interpreted as establishing an attorney-client relationship between the reader and its author.  Anyone reviewing this article should not act upon any information contained herein without first seeking the advice of legal counsel.  

 

Search terms: Bicycle accident cases and lawsuits, Bicycle collisions, Bicycle safety, Bike accident lawsuits, Bike accidents, Bike collisions, Risks for bicycle riders, accident attorney, accident lawyer, bicycle, bicycle accident laws, bicycle accident, bicycle accident attorney, bicycle risks, bicycle safety, bike accident, cycling, defective road conditions, dangerous roads, dangerous streets, Pittsburgh, Pennsylvania, Matthew F. Dolfi, Matt Dolfi, Pittsburgh Bike Lawyer, Pittsburgh Bike Accident, lawyer-cyclist, The Lawyer Cyclist, dolfilaw, Dolfi Law PC

As the Weather Starts to Improve: Look Twice, Save a (Bicyclist's) Life!

The ubiquitous slogan that is typically seen relating to motorcycles all over Pennsylvania.  Its usually followed with the phrase: "Motorcycles are everywhere."  But bicycles are everywhere, also.  And motorists need to be on the lookout for us, too.

According to a study in 2010, bicycle commuting in the City of Pittsburgh saw a whopping 206% increase over a ten year period.  The results were published on Bike Pgh's website and can be seen here.  In 2010, Pittsburgh witnessed the fourth largest growth of cyclists in the Nation!  And, that was before Mayor Peduto started installing bike lanes throughout the City. 

As we spin into 2015 - and start to anticipate warmer temperatures - you can expect to see more and more cyclists taking to the trails, bike paths, and roads.  When that occurs, it will be essential for motorists to keep both eyes on the lookout for cyclists.    

For now, as we just look forward to getting through the winter, there are some things you can do as a cyclist to avoid a car-on-bike collision.  Bicycling.com offered the following tips on how to avoid the five most common bike-vehicle accidents.  Here they are:


1.  THE LEFT CROSS - In this scenario, a motorist fails to observe a cyclist and makes a left turn directly in front of the cyclist.  According to the Pedestrian and Bicycle Information Center (PBIC), this type of accident accounts for nearly half of all bike-car crashes.

HOW TO AVOID IT: If you see or anticipate a car turning left into your path, turn right into the lane with the car.  Also, never creep into an intersection at a red light or stop sign in order to get a head start. 


2.  THE RIGHT HOOK - Here, a motorist passes a cyclist on the left and then turns right into the rider's path.

HOW TO AVOID IT:  As you approach an intersection, take the whole lane.  Its your legal right.  If you're in middle of the lane as you approach an intersection, motorists have no choice but to stay behind you until you proceed through the intersection.  Also, use hand signals early, before you reach the intersection, to alert motorists of your intentions. 


3.  GETTING "DOORED" - A driver or occupant of a parked vehicle opens their street-side door directly in the path of an oncoming cyclist.  

HOW TO AVOID IT:  Always ride at least 3 feet from parked cars, taking the lane if necessary.  If you can't take the lane, look ahead and try to spot any occupants inside vehicles who might "door" you.  In the winter-time or colder temperatures, keep a lookout for exhaust fumes.  They will alert you to someone who has just parked their care and might be exiting the vehicle.  It will also alert you to someone who may have just entered their vehicle and may be planning to pull suddenly out from a parked position.   


4.  GETTING "PARKING-LOTTED" - This happens when a motorist exits a driveway or parking lot directly into the path of an oncoming bicyclist.

HOW TO AVOID IT:  According to Bicycling.com, no bike-handling tricks can overcome the dangers of riding on a road with numerous parking lot exits.  It is suggested that you simply take an alternate route with less parking lots or side streets.  If you can't avoid your route, always obey the traffic laws, slow down near intersecting parking lots and side streets, and ride fully in your lane.  Most important, stay off the sidewalks because motorists are not looking for you there.


5.  THE OVERTAKING - A motorist hits a cyclist from behind.

HOW TO AVOID IT:  Make yourself as visible as possible by using reflectors and lights on your bike at night.  Wear clothing with hi-vis colors during the daytime.  Ride predictably by signaling your turns and avoid swerving.  You may also consider a rear-view mirror to help observe cars approaching from the rear.  Avoid headphones, too.  Because, if you're wearing headphones, you are certain to have no notice of that oncoming vehicle.  


While you wait for the Spring, please be safe out there.  And, thanks for reading.

Matthew F. Dolfi, Esquire

Dolfi Law PC
1100 Washington Avenue, Suite 206
Carnegie, PA 16106
412-227-9724
mdolfi@dolfilawpc.com

Website:
www.dolfilawpc.com

Facebook page:
https://www.facebook.com/PghBikeLawyer


Important notice:
The information provided in this blog article is not legal advice.  The information and opinions provided herein are solely for the general interest of the visitors to this website.  The information contained herein is only applicable to general principles of law in Pennsylvania and may not reflect current legal developments or statutory changes in various other jurisdictions.  Therefore, the information and opinions contained in this blog should not be relied upon or interpreted as legal advice.  No aspect of this blog article should be interpreted as establishing an attorney-client relationship between the reader and its author.  Anyone reviewing this article should not act upon any information contained herein without first seeking the advice of legal counsel.  

Search terms: Bicycle accident cases and lawsuits, Bicycle collisions, Bicycle safety, Bike accident lawsuits, Bike accidents, Bike collisions, Risks for bicycle riders, accident attorney, accident lawyer, bicycle, bicycle accident laws, bicycle accident, bicycle accident attorney, bicycle risks, bicycle safety, bike accident, cycling, defective road conditions, dangerous roads, dangerous streets, Pittsburgh, Pennsylvania, Matthew F. Dolfi, Matt Dolfi, Pittsburgh Bike Lawyer, Pittsburgh Bike Accident, lawyer-cyclist, The Lawyer Cyclist, dolfilaw, Dolfi Law PC

___________________________________________________________________

Protecting the rights of injured cyclists 

in Pittsburgh and Western Pennsylvania  

Does Pennsylvania's Four Foot Safe Passing Law Actually Make Cycling Any Safer? Is More Required?

In April, 2012, a new law went into effect in Pennsylvania requiring a driver overtaking a bicyclist to provide at least four feet of space between their car and the bicycle.  The "safe passing" law, which can be found at 75 Pa.C.S. § 3303, states that drivers must also pass at a careful and prudent reduced speed.  Drivers are permitted to cross the center line, even in a no passing zone, if it is safe to do so and necessary to overtake a cyclist while providing the necessary buffer zone.  (See 75 Pa.C.S.§ 3307.)  Violation of the law is a summary offense that carries a whopping $25.00 fine.

With the enactment of the safe passing law, Pennsylvania became one of 34 states to have enacted "safe passing" legislation.  Pennsylvania's four foot buffer zone is the largest among all of the "buffer zones" created by states' safe passing laws.  Many states require only three feet, while some other state's laws simply provide that a motorist must pass at a safe distance and speed.  But, those laws do not define what is a "safe" distance or speed.  To read more about the different states' safe passing laws, click here.    

The enactment of a safe passing law in Pennsylvania is a great idea and a nice step towards rider safety.  Indeed, I believe that it's absolutely necessary.  But, is the passage of a safe passing law, alone, enough?  I don't think so.    


One reason that the enactment of the safe passing law, alone, is not sufficient to curb accidents between bicycles and cars is that the law is virtually impossible to enforce.  Out on the road, there is nearly no way to accurately analyze how much distance exists between two moving vehicles.  Sure, you can eyeball it.  But a police officer would need to be sitting in the perfect location, at the perfect time, in order to actually observe a violation of this law.  And, if a motorist knows that an officer is nearby, he or she is unlikely to attempt an unlawful pass.

According to an article published by the Pittsburgh Post-Gazette, over one year after the safe passing law was enacted, police in the City of Pittsburgh had yet to issue even a single citation!  In the first 13 months after the law was passed, there were only 15 citations in the entire state of Pennsylvania - with none being issued in Pittsburgh or Philadelphia.  A cyclist quoted in the Post-Gazette's article stated that she collected helmet camera footage of a vehicle failing to safely pass.  She took the footage to the police and the charges discussed included harassment and endangering a person with a vehicle.  She claimed that the police did not even discuss the driver's alleged failure to pass at a safe distance.  This example highlights one of the other problems associated with safe passing laws: lack of awareness.         

After a law is newly enacted, it takes time for people (and police) to become aware of the law and its application.  You may not even know that you have violated a traffic law until you are pulled over and issued a citation.  Ignorance of the law is no defense to a criminal citation.  But that fact does not help to prevent the incident from occurring in the first place.  Thus, the key to the effectiveness of any law is informing the public about its existence and application.

Too many motorists do not even know about the four foot law and, worse, think that cyclists do not belong on the road!  There are no signs on the roads advising of the four foot law and no postings. Until recently, Pittsburgh barely had any bike culture to speak of.  Organizations like Bike Pittsburgh are helping to improve cycling awareness in the City.  But, until drivers and cyclists learn to respect each other and understand the interplay of the Rules of the Road, the safe passing law is not likely to have much effect.  To read more about Pennsylvania's Bike Laws, click here.

According to the Pennsylvania Department of Transportation ("PennDOT"), the number of bicycle crashes and injuries actually increased in the year following enactment of the safe passing law.  Statistics regarding bike crashes can be deceiving, though, as police are only required to disclose to PennDOT reported crashes that involve death, injury, and/or damage to a vehicle requiring a tow.  To read more about crash reporting, click here.

Since damaged or destroyed bicycles are not capable of being towed, an accident that destroys a bicycle, but not the car, may not generate a report that will be published to PennDOT.  Rather, only an accident involving serious injury will generate a report.  In any event, the take home message here is that there needs to be greater education of motorists and police regarding the enactment and application of Pennsylvania's four-foot safe passing law.

Also, in order to have any impact, the safe passing law must carry a stiffer penalty.  A $25.00 fine and summary offense is simply insufficient.  As noted by Pittsburgh Police Commander Scott Schubert in the Post-Gazette article, officers are not inclined to enforce the safe passing law because they are "busy with more serious matters."  Until this law gets some real teeth, it is not worth an officer's time to make a stop and issue a citation.  Likewise, a summary offense is not worth the District Attorney's time to prosecute.  So, many violations of the safe passing law may simply be ignored.  

If a violation of the safe passing law carried a felony charge, subject to a hefty fine and a prison sentence, then it might become a "more serious matter" worthy of the attention of motorists and police.

Some states have passed "vulnerable road user laws."  According to the League of American Bicyclists, vulnerable road user laws seek to "raise the legal stakes for a motorist who injures or kills a bicyclist or pedestrian."  Such laws increase the penalty if a motorist carelessly strikes and either kills or injures a vulnerable user of the road.  Some examples of vulnerable users include cyclists, runners, walkers, skate boarders, highway construction workers, and horse-drawn carriage riders. A violation of the vulnerable road user law could result in the suspension of driving privileges, heavier fines (than a summary offense), and jail time.

Here is the text of the League of American Bicyclists proposed legislation:

     Vulnerable Road User Law

     INFLICTION OF SERIOUS INJURY OR DEATH TO VULNERABLE ROAD USERS

     Section 1: As used herein, the term “vulnerable road user” includes:
        (a) a pedestrian, including those persons actually engaged in work upon a highway, or in work upon utility facilities along a highway, or engaged in the provision of emergency services within the right-of-way; or
        (b) a person riding an animal; or
        (c) a person lawfully operating any of the following on a public right-of-way, crosswalk, or shoulder of the highway:
            1. A bicycle;
            2. A farm tractor or similar vehicle designed primarily for farm use;
            3. A skateboard;
            4. Roller skates;
            5. In-line skates;
            6. A scooter;
            7. A moped;
            8. Motorcyclists;
            9. Horse-drawn carriage drivers;
           10. a person on an electric personal assistive mobility device; or
           11. a person in a wheelchair.

     Section 2: A person who operates a motor vehicle in a careless or distracted manner and causes serious physical injury or death to a vulnerable road user shall be guilty of infliction of serious physical injury or death to a vulnerable user.

     Section 3: A person issued a citation under this section shall be required to attend a hearing before a court of appropriate jurisdiction.

     Section 4: A person found to have committed an offense under this statute shall be required to
        (a) have his or her driving privileged suspended for a period of no less than 6 months; and one or more of the following:
        (b) pay a monetary penalty of not more than two thousand dollars; or
        (c) serve a period of incarceration which may not exceed thirty days; or
        (d) participate in a motor vehicle accident prevention course; or
        (e) perform community service for a number of hours to be determined by the court, which may not exceed two hundred hours.

Pennsylvania has not enacted any vulnerable road user laws, yet.

Do you believe that the safe passing law, alone, is sufficient to deter accidents with cyclists?  Should Pennsylvania enact vulnerable road user laws, too?  


Until Pennsylvania passes such legislation, be safe out there and please obey all of the traffic laws. Thank you for reading.

Matthew F. Dolfi
Dolfi Law PC 
1100 Washington Avenue, Suite 206
Carnegie, Pennsylvania 15106
412-227-9724

www.dolfilawpc.com

https://www.facebook.com/PghBikeLawyer

Search terms: Bicycle accident cases and lawsuits, Bicycle collisions, Bicycle safety, Bike accident lawsuits, Bike accidents, Bike collisions, Risks for bicycle riders, accident attorney, accident lawyer, bicycle, bicycle accident laws, bicycle accident, bicycle accident attorney, bicycle risks, bicycle safety, bike accident, cycling, Pittsburgh, Pennsylvania, Matthew F. Dolfi, Matt Dolfi, Pittsburgh Bike Lawyer, Pittsburgh Bike Accident, lawyer-cyclist, The Lawyer Cyclist 

Dangerous and Unrestrained Dogs - What should a cyclist do?

Recently, I was riding my bike with a group of experienced cyclists on a quiet farm road (on the other side of a quaint, covered bridged) when we encountered a highly-aggressive, unrestrained pit bull and an intimidating (albeit, much more passive, but equally unrestrained) Akita.  Please note that I am not disparaging pit bulls, Akitas, or any other breeds.  I only mention the breed here to provide detail to the story.  Anyway, we were climbing up a hill so, naturally, I was in the back of the pack, about 50 yards behind the two leaders of the ride.  From that position, I observed the pit bull rush down from his yard, approach our lead rider, and bite him on the foot! 

I immediately pulled up and straddled my bike.  I was joined by another of the riders.  Together, we watched as the pit bull continued to chase our friends up the road for about 30 yards.  Thankfully, they rode free without another incident.  But, as the dog lost interest in them, it turned back around and refocused its attention on us! 

As the pit bull approached at a full sprint, I imagined the worst.  I didn't know whether to turn around and race down the hill or to prepare to fight.  I tried to stay calm.  My buddy hopped off his bike and placed it between himself and the dog.  So, I did the same.  

As the dog got close, we both yelled (loudly) for him to stop and sit.  Thankfully, the dog listened.  But he did not retreat.  I still did not know whether to turn around and flee or try to walk past his yard.  Our friends were now at least 100 yards down the road.  My buddy made the decision to walk on, so I (reluctantly) followed.  

We were able to walk our bikes up the hill to our friends, but not without the pit bull staying within 10 yards of our every step.  Every time we tried to remount our bikes, he would come closer!  We yelled at him and he would retreat a little bit each time.  The Akita kept a watchful eye on us, but (thankfully) never got to the road.  Once we were about 50 yards down the road, the pit bull finally let us go.  The rider who was bitten was wearing thick shoes and booties to protect his feet.  So, he wasn't injured.  I'm not sure if he will ever ride that road again, but I will definitely think twice about it.     

Incidents with dogs (on or off the bike) are frightening.  Even the best, well-trained dogs can be unpredictable.  They can bite, knock you down, or injure you while you attempt to flee from an attack.  You might suffer a puncture wound, a broken bone, or a head injury.  An encounter with a vicious dog may even leave you with post-traumatic stress.  The encounter I had with the pit bull will not be forgotten any time soon. 

If you have suffered an encounter with a vicious dog (or other animal), it is important that you protect your rights.  You should immediately:

1. Seek medical attention;
2. Notify local animal control;
3. Take photographs of your injuries;
4. Gather information, including the location of the dog's residence and the names and addresses of any witnesses; and
5. Consult a lawyer. 

In Pittsburgh and Allegheny County, you can report a dog bite or attack incident to the Dog Warden at (412) 418-2163.  In Pittsburgh, attack victims and medical personnel may also report the incident to the Bureau of Animal Care and Control.  A police officer or Animal Care and Control Officer will then investigate the incident.  For more on what to do in the event of a dog bite or attack, see here. 


If you were injured and need to seek recovery for your pain and suffering, it is not enough to show that the dog was an allegedly "vicious breed."  Rather, the critical question is whether or not the dog exhibited vicious tendencies, i.e., a history of aggressive behavior and attacks, and whether or not its owner knew about those tendencies. 

In Pennsylvania, vicious propensities can be exhibited by the dog's conduct on the day in question.  In other words, the dog (and its owner) are not entitled to "one free bite."  Further, it must also be shown that the dog's owner failed to properly restrain the animal.  Pennsylvania has leash laws that prevent owners from permitting dogs to leave the owner's premises while uncontrolled.  An owner can claim that his/her dog escaped.  In that case, the question for the jury will be whether or not the owner took reasonable steps to restrain the dog.  For example, if a dog can jump a six foot fence, then (clearly) a four foot fence is not sufficient to restrain that dog. 


Avoiding an incident in the first place is always better than dealing with the aftermath.  For some tips on what to do in the event of an encounter, see here and here.  If you are involved in a dog attack, please do not hesitate to contact me for a free consultation and to discuss your case.

In the meantime, be safe out there and thank you for reading. 

Matthew F. Dolfi

Dolfi Law PC 
1100 Washington Avenue 
Suite 206
Carnegie, Pennsylvania 15106
412-227-9724

www.dolfilawpc.com

https://www.facebook.com/PghBikeLawyer

Search terms: dog bites, dog law, dangerous dogs, vicious propensities, Pennsylvania dog law, Pittsburgh dog law, dog bite accident, aggressive dogs, homeowner liability, leash laws, unrestrained dogs, Bicycle accident cases and lawsuits, Bicycle collisions, Bicycle safety, Bike accident lawsuits, Bike accidents, Bike collisions, Risks for bicycle riders, accident attorney, accident lawyer, bicycle, bicycle accident laws, bicycle accident, bicycle accident attorney, bicycle risks, bicycle safety, bike accident, cycling, Pittsburgh, Pennsylvania, Matthew F. Dolfi, Matt Dolfi, Pittsburgh Bike Lawyer, Pittsburgh Bike Accident, lawyer-cyclist, The Lawyer Cyclist

Are you receiving treatment following an accident that is "medically necessary?" If not, your insurance company can deny coverage.

I.  Introduction.

First, here are some basics.  If someone is injured in an accident involving a motor vehicle in Pennsylvania, the Motor Vehicle Financial Responsibility Law (or, "MVFRL") establishes the manner in which the individual must seek reimbursement for medical bills.  The MVFRL states that if you are a "named insured" on an automobile insurance policy, you must look first to that policy to cover your expenses.  This kind of coverage is known as "first party" insurance. 

The next place you might look to recover medical bills is any policy under which you are an insured (as opposed to a "named insured").  A "named insured" is someone who is actually named on the policy.  An "insured," by contrast, is a spouse, child, or other relative living in the same house as the "named insured."  

If you are not a named insured or an insured, but you were occupying an insured vehicle at the time of an accident, you can recover under the insurance policy for that vehicle.  Cyclists are not considered to be occupying a vehicle for purposes of recovering "first party" benefits.  

Finally, if you are not a named insured, an insured, or were not the occupant of a motor vehicle (e.g., a pedestrian or cyclist), then you can seek to recover from the policy of any vehicle involved in the accident (not including parked or unoccupied vehicles).    

All of these sources of benefits come before you may seek to recover from a negligent driver who injured you.  The insurance coverage of another responsible person is called "third party" insurance coverage (I'm still not sure who the "second party" is).

II.  Medical Treatment Must be Reasonable and Necessary.       

The MVFRL was designed to reduce the costs associated with automobile accidents.  As such, section 1797 of the MVFRL limits the amount that medical providers (e.g., physicians, chiropractors, and physical/occupational therapists) may charge for treatment, accommodations, products, or services rendered to patients injured in automobile accidents where the injury is covered by an automobile insurance policy.  The MFVRL also requires providers to seek reimbursement of their bills from an insurer and prevents providers from seeking any payment from the patient with regard to the difference between the provider’s ordinary charges and those paid by an insurance company.  So, as long as you have coverage, your provider must submit your medical bills to your insurance carrier.    

In furtherance of reducing costs associated with motor vehicle accidents, the MVFRL permits an insurance company to contest its obligation to pay for ongoing medical treatment by submitting a patient’s treatment to a peer review organization, or “PRO.”  If, upon a timely challenge, a PRO determines that treatment is unreasonable or unnecessary, the provider may not collect (or must return with interest) any related payments.  That means that your expenses for ongoing (or, even, past) medical treatment will no longer be covered by insurance!  In that case, you will be responsible for the payment of any additional treatment charges.    

An injured person (or their provider) can challenge a PRO determination that treatment was unreasonable or unnecessary by: (1) requesting reconsideration of the PRO; or (2) by filing an appeal to the court.  If a court finds that the treatment provided was reasonable or necessary, the insurer must pay to the provider any outstanding fees for treatment, plus 12% annual interest.  If the insurer’s conduct is found to be wanton (i.e., totally unreasonable), the insurer can be subject to a payment of treble (or, triple) damages.  Likewise, if the insurer is found to have acted with no reasonable foundation in refusing to pay benefits, they may be subjected to an award of attorneys fees for the time expended to recover the medical bills.  

If an insurer denies payment for medical or rehabilitation treatment without first seeking a peer review through a PRO, and if a court finds that the treatment rendered was reasonable or necessary, then the insurer must pay to the provider all outstanding amounts, plus interest at 12%, as well as the costs of the challenge and all attorney fees. 

Attorneys’ fees and costs are hotly contested in these types of cases and are typically only recoverable in the event that an insurance company fails to challenge the treatment through a PRO (i.e., acts wantonly).  If an insurance company timely challenges treatment before a proper PRO, attorneys’ fees and costs will generally be “off the table,” even if the treatment is ultimately found to have been reasonable or necessary.  If a court finds that the treatment was unreasonable or unnecessary, then the provider may not recover for those services and must return any unreturned payments, with interest.    

III.  Clarification from the Supreme Court on an Award of Attorney's Fees.

Some courts have awarded attorneys fees to providers where an insurance company improperly uses the PRO process.  In one case, the court awarded attorney’s fees and costs to a provider because the insurance company did not submit the charges to a PRO in a timely manner (i.e., within 90 days of receipt of the bills for treatment).  Also, the court in that case found that an independent medical examination (or, an “IME”) was not the equivalent of a PRO.  Rather, because the purpose of an IME is to determine whether or not treatment is causally related to an accident and/or whether a patient has reached maximum medical improvement, an IME does not necessarily address the issue of whether or not a provider’s treatment was reasonable or necessary.  Thus, where the insurance company relied upon an IME to refuse payment of the provider’s medical bills, the court held that the insurer did not properly avail itself of the PRO process.  Therefore, the court awarded attorney’s fees and costs to the provider after it also found that the provider’s treatments were reasonable and necessary.       

In another case, a trial court awarded attorney’s fees and costs because it found that the insurance company – who did utilize the PRO process – did not follow certain accepted peer review processes.  In other words, the court found that the insurance company’s PRO was “invalid.”  On December 31, 2014, the Pennsylvania Supreme Court granted the insurance company’s appeal of the trial court’s decision.  On appeal, the Supreme Court will examine, among other things, whether or not the lower court improperly awarded attorneys fees even though the insurer utilized the peer review process. 

IV.  Conclusion.

If you are injured in an accident involving a motor vehicle in Pittsburgh or Western Pennsylvania, your medical expenses may be covered from a variety of "first-party" sources.  If you do receive "first-party" insurance coverage, the insurance company can challenge whether your treatment is reasonable or necessary.  If they do - and if they obtain a PRO report stating that your treatment is no longer reasonable or necessary - then you may need to fight back in order continue receiving benefits.  An experienced insurance attorney can help you (or, your provider) resolve these issues.         

Thanks for reading and, as always, keep the rubber side down.

Matthew F. Dolfi

Dolfi Law PC

1100 Washington Avenue, Suite 206
Carnegie, Pennsylvania 15106

412-227-9724  

Getting the word out - The Lawyer-Cyclist appears on the New York Bike Accident Blog!

Many thanks to Jim Reed and

the New York Bike Accident Blog for passing the message along!

I recently posted an article discussing the implications of the “full tort" and "limited tort” options on car insurance in Pennsylvania and what they can mean for insured bicyclists who are injured by motorists.  (Read the article here).   

On January 6, 2015, New York and Pennsylvania bike accident lawyer, Jim Reed, re-posted the Lawyer-Cyclist's article as a guest post on his blog, the New York Bike Accident Blog.  (Read the guest post here). 

Jim is an exceptional bike lawyer and advocate, a member of Bike Law USA (a National network of Bike Law attorneys), and a friend of the Lawyer-Cyclist.  Learn more about Jim and his practice here. 

Jim Reed

I am proud to have been recognized by Jim and the New York Bike Accident Blog!  I also appreciate the opportunity to appear as a guest blogger on the New York Bike Accident Blog page.
 

Thank you for reading and for your support!   

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