...Chuy's settled before the February 2010 civil trial for an undisclosed sum. During the trial, jurors were told that a city engineer had abandoned plans to add five feet of asphalt to the roadway during an improvement project, creating a large offset in the lanes on either side of Vozack Lane, just east of Harrison. As a result, Rumsey ended up in the bike lane when her lane ended and she tried to merge.

The jury decided Rumsey, the city of Tucson and Chuy's were equally responsible and awarded $40 million to the Rincon family. The city's $13 million share was the largest individual judgment ever against the city. The city appealed, and Pima County Superior Court Judge Kenneth Lee denied the motion for a new trial but granted the defendants' request for a reduced judgment, slashing the judgment to $12 million.

The city then went to the Arizona Court of Appeals, and it decided in March 2011 that the case should be retried. The Rincons settled with both Rumsey and the city recently.

The settlement with Rumsey is confidential; the settlement with the city specifically states the city was making "no admission of liability, culpability or fault, either by expression or implication." .... Back when Lee reduced the $40 million judgment, Rincon said he and his wife had agreed to settle the lawsuit for $950,000 before trial, but the city refused. He bemoaned the fact that because the public didn't know the city hadn't accepted the settlement offer, residents were under the impression he and his wife were "money-grubbers."...

The city's appeal is online at justia.com RINCON v. RUMSEY, CITY OF TUCSON, contains some interesting stuff. (it should also be online via court-of-appeals div 2 website, but i haven't looked for it there). Note that the superior-court appeal upheld the trial judge; while the court of appeals found the trial court judge (and thus the superior court appeals judge) erred.

]

Glenda Rumsey was found guilty of manslaughter in the death of Tucson teenager Jose Rincon.  (see here for a roundup of types of murder). Like many drunk drivers, she also tried to run.

Conviction on the higher charge was probably due to her being extremely extreme DUI (.249 two hours AFTER the collision).

The defense’s case seemed mainly about claiming that road defects caused the collision. This obviously didn’t pan out for them. The defense also didn’t get anywhere by mentioning the cyclists (there were two hit) had no headlights. Well, they were hit from behind — one who actually cares about the law is left to wonder if the victims met requirements for REAR facing visibility… i.e. a reflector. Apparently she was driving in the dirt, along the road, after missing the merge — which is where she struck the cyclists.

There was some other controversy surround  Ms Rumsey, something about her being out (and driving, of course) but she was caught with alchol in her system (the deal was she was supposed to not drink ANY).

So anyways, sentencing is Jan 20… should be interesting. manslaughter, plus some sort of assault, (leaving the scene — where did that charge go?). Judges tend to make the sentences run concurrently so as to get offenders back on the street as soon as possible.

tucsonbikelawyer.com/jose-rincon-ghost-bike-is-stolen/

tucsonbikelawyer.com/glenda-rumsey-sentenced-to-14-years-for-killing-jose-rincon-jr/

tucsonbikelawyer.com/jose-rincon-40m-award-reduced-to-12m-city-rejected-settlement-offer-of-950000-00/

tucsonbikelawyer.com/glenda-rumsey-civil-verdict-overturned/

many more Rincon / Rumsey articles do a search of tucsonbikelawyer.com

[SENTENCING finally actually happened 4/18/2012; the matter is finally (hopefully) put to rest.  According to my correspondent, Foshee received 10.5 years for manslaughter 6 years each on the endangerment, 22.5 years, but to be served concurently so 10 1/2 years, TOTAL, which is the presumptive sentence for manslaughter all by itself, a dangerous class 2 felony (see 28-704). Off-hand, not knowing all details and back-story -- this seems too light given the hit-and-run, the other aggravating circumstances, the prior DUI conviction, and the (I presume) rejection of a plea deal. In short, it seems to me the justice system is sending many wrong signals here, for example it appears that, once again, there is no penalty whatsoever for hitting-and-running. You can read the sentencing case minute here. ]

[Updates from case minutes 3/28/2012: The motion for a new trial has been DENIED.  And separately, on the Defendant’s Motion, the defendant has been found to be indigent. I assume this has something to do with lawyer's fees. Sentencing remains scheduled for 4/6/2012]

[Sentencing Update; 3/23/2012 -- to the surprise of probably no one, sentencing did not occur as scheduled. The defense has filed a motion for new trial (here is the case minute, but it doesn't explain anything), the prosecution has until 3/23 to respond. The sentencing has be re-scheduled for 4/6/2012]

[breaking news update: 2/14/2012 -- guilty on all counts / and all counts are "dangerous"; the jury in a seperate phase found the charge to be aggravated (will make sentencing, scheduled for March 23, harsher). Man guilty of manslaughter in bicyclist's death, Jim Walsh. Here is the verdict case minute, it is quite detailed ]

The manslaughter trial stemming from an incident where a cyclist was killed in August of 2009 is actually going to trial 1/30/2012 after many delays — yes, that was almost two and half years ago!

My correspondent told me that jury selection did begin on Monday.

According to police, issued to the media, at the time:

• A WB driver crossed over into the EB lane and collided head-on and killed Russell Jenkins
• “The rider…  had a working headlight on his bike”
• “The surviving cyclists … reported that Foshee had a strong odor of alcohol”
• “The driver fled the scene, but the Maricopa County Sheriff’s Office Traffic Unit later arrested Gary Foshe [Foshee], 53″
• “two deputies reported that Foshee had a strong odor of alcohol and several signs of intoxication”

The defendant’s prior DUI conviction, as well as his blood test results are likely to be key factors. On the other hand, the issue of the victim’s posthumous blood test results is, from what i can tell, irrelevant because it did not affect the crash in any way.

Much more background here and here.

Ped fatality Saturday, Cyclist fatality Sunday

(3/10 and 3/11). A handful of interesting points: each driver was cited within a day or two of the incident. In the case of the pedestrian mowed down in a crosswalk, the driver was also cited for 28-672 (causing death by violation) which is a criminal (albeit a minor misdemeanor) charge. In the case of the cyclist, according to blogs.phoenixnewtimes.com the driver was cited for violating the 3-foot rule (28-735) and driving in a bike lane (28-815D). The police aren’t letting on why the driver so distracted that she was driving in the bike lane (and yes, it’s a real, full-fledged, designated bike lane), other than to say the investigation is continuing. As I pointed out in double-jeopardy-and-flawed-logic it’s unusual (around Arizona) to issue any citations until the close of investigation and getting the go-ahead from a county prosecutor — apparently Scottsdale does things differently.

It is gratifying to see Scottsdale issuing the 28-672 charge when appropriate… I have no way to check this but it seems way under-utilized. In the end, though, it may be little more than a slap on the wrist, see e.g. this case where it seems to have merely amounted to a $200 fine — hardly a behavior-changing penalty. Last month, Scottsdale also charged a driver making a bad left with 28-672 which resulted in the death of a boy riding legally in the crosswalk (a la Maxwell v. Gossett).

Pedestrian: Judith May, 69 / driver: Frederick Matschull, 72; Case TR-2012006196

Cyclist: Shawn McCarty, 53 / driver: Amy Alexander, 40; Case TR-2012006430.

lookup Scottsdale Municipal Court records by case number at scottsdaleaz.gov.

Lindsey Lucero – Mar. 12, 2012 03:16 PM The Arizona Republic-12 News Breaking News Team

A bicyclist died Sunday evening after being struck by an SUV on Thompson Peak Parkway about 4:30 p.m., Scottsdale police said Monday.

Shawn McCarty, 53, of Scottsdale, was traveling northbound in the bike lane when the female driver of a black Chevy Tahoe, 40-year-old Amy Alexander of Scottsdale, swerved into the bike lane, striking McCarty. It wasn’t immediately known what caused her to swerve.

Police were called to the scene just north of 100th Street on Thompson Peak Parkway, and McCarty was transported to Scottsdale Healthcare Osborn Medical Center, where he was pronounced dead.

Thompson Peak Parkway was closed until about 11 p.m. Sunday. Police have ruled out alcohol, drugs and the driver’s speed as factors in the collision.

In a separate collision in Scottsdale, a pedestrian was fatally struck by a vehicle early Saturday.

Judith May, 69, a California resident, was killed after being hit by a pickup at about 7:30 a.m. Saturday. May was crossing the street on the east side of Scottsdale Road at Osborn Road when the pickup turned left and struck her. Police said there’s no indication the pickup driver, Frederick Matschull, 72, of Mesa, was impaired.

Both drivers were cited in the collisions.

Meyerhoff graduated from Mountain Pointe High School in 2002.

Meyerhoff was “heading south and collided with a truck heading east, according to Maricopa police spokeswoman LaTricia Woods”. These directions imply that she failed to yield at the White and Parker Road stop sign; several sources are indeed reporting just that but we should wait for more official pronouncement.

The area is rural/country/hi-speed, speed limits along Maricopa-Casa Grande Highway must be is 50mph. This highway, is by the way, not ADOT.

[AZ Rep news article]

Here is Sally’s blog. RUN SAL run!

The Police Report

The report was obtained from the (city of) Maricopa Police Department; and there were no surprises.

Conclusion: It is my opinion that this collision was caused by Ms. Sally Meyerhoff. Evidence and witness statements show signs that she failed to stop at the posted stop sign and entered into the intersection in front of oncoming traffic.

The report was very thorough and of high quality. We’ll never know why Sally, an accomplished cyclist who was familiar with the area and rode there often, simply did not stop. Witnesses said that not only did she not stop, but did turn her head either direction — as though she had no sense of where she was. A witness who worked at the adjacent feed lot, and was positioned directly opposite Sally said:

…he did not see the person on the bicycle look either direction at the intersection did not stop and continued into the intersection… Mr. Uriarte stated he had seen the woman on her bicycle every afternoon riding south on White and Parker road for approximately 2 months.

Other facts:

The vehicle that Sally collided with was a heavy-duty 1 Ton pickup w/dual rear wheels. The driver passed field sobriety check, and was not suspected of being under the influence; he volunteered for a blood draw.

The intersection was in the process of being upgraded from stop signs for White-Parker Road to signals. The signals were already in place, but inoperative, and the stop signs remained. Had the victim been unfamilar with the intersection, we might speculate that they may have become confused by the inoperative signals.

SALLY, DRESSED IN HIGH VISIBILITY WARE…  AND THE HELMET WAS STILL ON HER HEAD.

The Arizona Republic ran a long story about Sally’s life on the cover of the sports section 12/4/2011. They devoted several paragraphs to a description of the fatal crash:

Yet the mystery remains as to why someone known to be cautious on her bike and at that specific intersection would take such a risk…

In the police reports, a witness and both passengers in Matteson’s truck say a semi truck went through the intersection just before the collision. Garcia and Anthony Urias, who were with Matteson, told police they were commenting on a large semi that passed them. Urias, in the front passenger seat, turned to look at the railroad tracks on the south side then a few seconds later Garcia shouted out his warning to Matteson.

Witness Jose Ricardo Uriarte of Maricopa, waiting in his truck on the south side of White and Park Road to make a right turn, told The Republic that he was focused on the semi after it went through the intersection because it was going fast, probably over the speed limit. Uriarte doesn’t know if the semi prevented Meyerhoff from seeing Matteson’s truck.

…

Perhaps Meyerhoff stopped at the stop sign, set back from the intersection, then began moving forward to time crossing the intersection after the semi passed in front of her going right to left and was unaware of Matteson’s vehicle.

Perhaps, but that would be at odds with what a couple of witnesses said to the police; for example, quoting from the police report “he (Uriarte) did not see the person on the bicycle look either direction at the intersection did not stop and continued into the intersection…”

Some background information and media reports about the incident which occurred 8/15/2009: Queen Creek hit-and-run; driver arrested

The Foshee trial is the only criminal case remaining involving a cyclist fatality for the 2009 calendar year. You can track court proceedings at publicaccess.

Here’s the latest bit of upcoming wrangling: Evidentiary Hearing re: State’s Motion in Limine to
Preclude Any Mention of Victim’s Blood and Oral Argument re: State’s Motion in Limine
to Preclude Defense Witness for April 13, 2011 at 9:30 a.m

The prosecution has dropped the DUI charge (back in March), so I’m not sure what’s what with that — that leaves the manslaughter and 2x endangerment charges going forward.

Another Delay, and two blows against the defense

There was some sort of hearing April 18 with a bunch of substantive rulings. Defense counsel’s Motion to Continue Trial due to the unavailability of a witness was granted, trial now to start May 16, 2011. And in two blows against the defense, the Defendant’s prior DUI conviction will be admissible, and the Victim’s tox results will be excluded.

IT IS ORDERED granting the Motion and the Defendant’s prior DUI conviction is admissible

IT IS ORDERED granting the State’s Motion and excluding the Victim’s Toxicology Results.

And the defense loses AGAIN on 6/17 minute entry:

IT IS ORDERED denying Defendant’s Motion of Reconsideration. The transcript provided of Dr. Lyons does not establish impairment of the victim; only that he could have been impaired

…

here are some blog posts about the “ghost bike” memorial:

• queencreekevolves.blogspot.com
• www.bygonebicyclist.com
• azroadsidememorials.wordpress.com

UPDATE: Police arrest suspect 7/17/2010 [abc15] “Tempe police say Cody Ryan Davis has been charged with leaving the scene of a fatal accident in the death of Bradley Jason Scott, 32, who was struck and killed at Southern Avenue and Rural Road around midnight last Saturday. Police say video shows Scott was legally riding a bicycle with the flow of traffic at the time he was struck and killed… police say he made admissions related to the incident”

Over on the TBAG blog, the question was raised about lights.  I am *guessing* that since police went out of their way to say things like “Police say video shows Scott was LEGALLY riding a bicycle… “, that the cyclist had a light.
There was also some discussion of motorized bikes in general; for a lot of minutia about motorized bicycles; see this entry.  The short answer is that the motorized bicycle law wasn’t really thought through, and has a bunch of holes and gray areas.

…

Police are seeking the driver who killed a motorized bicyclist around 11:45pm Saturday, July 10, 2010.

The cyclist was killed as he rode eastbound on Southern Avenue near the intersection of Rural Road. The vehicle was described as newer model gold or champagne-colored Ford Taurus or Mercury Sable.

Police released traffic camera footage in the hopes that will lead to locating the driver, you can view the footage at [fox10news][abc15]. The driver made a bad left and really plowed into the cyclist who was proceeding straight ahead.

[evtrib]

Traffic records for all bicyclist fatalities occurring in Arizona during the year 2009 were categorized and listed according to manner of collision and assignment of fault. Primary results are that 11 of 25 fatalities (44%) were determined to be the fault of the cyclist; while 14 of 25 (56%) were the fault of a motor vehicle driver. The most common manner of collision is when a driver strikes a cyclist from behind.

Full Report

The full report is available in pdf format:
Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009
Supporting data: 2009CyclistFatals.xls

Comments or questions may be left here, or contact me.

There were some somewhat out-of-context statements about my report on the npr.org health blog. They probably should have mentioned that the report covers only FATAL bike-MV collisions (a tiny fraction of all bike-MV collisions), and that the manner of collision in fatals varies significantly from non-fatals.

Background References

City of Mesa has various crash analysis reports available. For example in the 2007 Bicycle crash analysis found that of the 231 bike-vehicle crashes, the cyclist was most at fault in 57% (131 crashes), and the driver in 43% (100 crashes).

The percentage of fault attributed to cyclists is very likely to be overstated because in many of the cyclist most at fault cases, the reason was suspicious; e.g. in 40 cases the cyclist was most at fault for “Other”, while only 8 drivers were faulted for “Other”. Faults such as Other, Unknown, and Inattention (when used as primary or the only fault) are prone to be used in cases where the investigator has for unstated reasons (bias?) decided one party is  guilty, but are violating no laws. The report tries to explain the high-other as follows:

“Other violation. A review of PARs seemd to indicate that this was a catch-all classification. If there appeared to be a question as to which operator was at fault, this violation was identified and attributed to the pedalcyclist 17.3% of the time”

Previous analysis found an even higher suspicious use of “Other” fault. In 2005, the report found cyclists most at fault 68% of the time. Unsurprisingly, there were an outsized number of  “Other” faults against the cyclist; 60, versus only 10 for drivers.

It should be pointed out that the concept of most at fault prior to the 8th Edition (October 2008) of the Crash Manual was considered preferred, but not mandatory to code Traffic Unit #1 as most at fault. (see here for links to both the 7th and 8th editions), nonetheless the City of Mesa report use Unit #1 to claim to establish fault. So perhaps there is a disconnect between the police (who do the investigations) and the traffic analysis people who crunch the numbers. And also, since the number of other is going down over time, perhaps the police are taking the investigations more seriously, which is a positive sign.

—

This conference paper may be of interest: Schramm, Amy J. and Rakotonirainy, Andry and Haworth, Narelle L. (2008) How much does disregard of road rules contribute to bicycle-vehicle collisions? full text .pdf.

“The analysis would suggest that it is usually driver behaviour that contributes to bicycle vehicle collisions, with the motor vehicle being the at fault unit in nearly two thirds of reported crashes. This trend is even more noticeable in bicycle-vehicle collisions where the cyclist is of driving age. Traffic violations were reported in over two thirds of bicycle-vehicle collisions. In crashes where traffic violations were found to have occurred, vehicles were more likely to have broken the road rules. This is in contrast to the popularly held opinion that cyclists’ failure to adhere to road rules results in crashes”

—

This published paper examined 6774 bicycle crashes occurring in Queensland, Austrailia and found “cyclists were deemed to be at fault in 44.4% of the incidents”. Coincidentally, 44% is the percentage of cyclists at fault in 2009 fatal collisions in Arizona.

And when only bicyclist-MV crashes were considered, “The analyses reported here showed that the motor vehicle was at fault in 65.6% of bicycle motor vehicle crashes with traffic violations recorded against 85.4% of these drivers. This contrasts sharply with the media articles and surveys portraying cyclists as risk-takers who disobey traffic regulations.” I wonder if the 65.6 figure is a type-o, because in the body of the paper in the section on bicycle-MV crashes it says “The bicyclist was deemed the at-fault vehicle in 2809 instances (44.4%)” which would seem to me to leave 55.6% drivers at fault, and not 65.6.

Schramm, Amy J. and Rakotonirainy, Andry and Haworth, Narelle L. (2010)
The role of traffic violations in police-reported bicycle crashes in Queensland. Journal of the Australasian College of Road Safety, 21(3). pp. 61-67.

—

Should State DOTs Prefer Bicycle Lanes or Wide Curb Lanes? A.L. Dennison, 2008 [.pdf] This report was produced for ADOT in cooperation with US DOT/Federal Highway Authority.

Bicycle facility advocates have long debated the respective merits of bicycle lanes (BLs) and wide curb lanes (WCLs); this report investigates their claims… This study found no apparent relationship between fatal bicycle/motor vehicle collisions and type of bike facility… A significant handicap to any analysis of bicycle travel or safety is the paucity of reliable data.

Of great interest to me was the categorization of bicyclist fatalities over a four year (2003-2006) period, based on police reports. Somehow I missed this report entirely even as I echoed its complains about the “paucity of reliable data” for cyclist/traffic collisions while researching Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009.

According to my (from ADOT’s Arizona Crash Facts) records there were 15, 27, 35, 30 fatals in 2003, 2004, 2005, and 2006, respectively. This totals 107, but the report says that “We obtained 85 (97%) of 88 microfilmed fatal bicyclist/motorist crash reports submitted to AzDOT by police agencies in Arizona between 2003-2006″. The missing 3 (88-85) are explained in a footnote. But one wonders, where are the other 19? (=107 – 88). Does that mean that not all fatalities are submitted to ADOT? … so the answer i am told is that it covers the time period 17-Oct-2003 to 25-Sept-2006, which makes sense.

Woman dies when motorized bike collides with car in Phoenix
by Jack Highberger – Jan. 20, 2011 12:26 PM The Arizona Republic-12 News Breaking News Team
A 53-year-old woman died Tuesday night when her motorized bicycle collided with a car on Dunlap and 25th avenues.
The woman was driving the motorized bicycle on a sidewalk when she entered the crosswalk and collided with the car, said Sgt. Tommy Thompson of the Phoenix Police Department.
She was not wearing a helmet at the time of the collision.
She was taken to the hospital where she later died. The driver of the car, who is also a 53-year-old woman, was not charged by Phoenix police. Authorities said it’s illegal to operate a motorized vehicle on a sidewalk.

First off, let me say that this type of collision is pretty common, and it is exactly why sidewalk cycling, motorized or not, is not recommended. But is it illegal?
I have written before on the tangled thicket that is the motorized bicycle law, see these two articles for background, definitions, and laws:

• http://azbikelaw.org/blog/moped-and-motorized-bicycles-in-arizona/
• http://azbikelaw.org/blog/is-your-motorized-bike-a-play-vehicle/

And since it involves a sidewalk/crosswalk, see also:

• http://azbikelaw.org/blog/sidewalk-cycling-in-arizona/

The city of Phoenix code of ordinances is, thankfully, online at municode.com (go to Part II,  Chapter 36 for traffic).

So, Is it Illegal to ride a Motorized Bicycle on the Sidewalk in Phoenix?

Short answer: probably not.

The law alluded to by “Authorities” is presumably Phoenix Sec. 36-63  ”No person shall drive upon, across or within any sidewalk…”. Or perhaps its companion in the ARS §28-904 which is a little different: “A person shall not drive a vehicle on a sidewalk”.  But exactly how or if that applies to motorized bicycles is highly questionable.

The city attorney really ought to look at it — with all due respect to the police, I think this may be a case where they are just speaking off the top of their heads without actually considering the law.

This feels like another one of those issues that will never be gotten to the bottom of.

Phoenix has no (none i can find) ordinance specifically controlling motorized bicycles. Contrast this to, for example, the city of Tucson, which bans both plain-old bicycles generally, as well as a specific ordinance that specifically bans motorized bicycles from sidewalks.

So since there is no specific city ordinance, it would fall back to bicycle codes, along with whatever the ARS says.

And the actual issue isn’t whether or not a motorized bicycle may be ridden on the sidewalk, it’s really about what happens when they are ridden in a crosswalk. The answer for *bicycles* is clearly that they are NOT prohibited, see e.g. Maxwell v Gossett, but it is unclear how the motor might affect that… it seems to me that it would not.

There are a couple of reference in the city code about devices “propelled by human power”, e.g. 36-16 Applicability — it remains unclear where the motor fits in.

The “Motorized Play Vehicle” Wildcard

Some cities have taken the (incorrect, in my opinion) position that motorized bicycles are simply motorized play vehicles — which are banned from just about everywhere; including streets and sidewalks. Most/many cities, including Phoenix, had pre-existing (that is to say: pre-dating the ARS that defined motorized bicycles) such laws; Phoenix 36-1, and 36-64, and the above link for full discussion.

—

2011 cyclist fatality grid.

According to item at biketempe.org, and thread at azfixed.com…

Bike commuter Jay Fretz was killed in a a collision at the intersection of Alamenda and McClintock Drive in Tempe at approximately 6:30p Monday 5/17/2010.

The story has not received any media coverage at the time (strange?).  abc15 ran a piece 10 days after the crash that said “Investigators said he was hit by a car as he rode through a crosswalk at McClintock and Alameda drives”.

This tragedy comes just one week after an ASU student was killed in another Tempe collision.

2010 Arizona cyclist fatality grid

The folks from T.B.A.G. have erected a ghost bike to commemorate the spot where Jay was killed.

“But there is more to the story, punctuated with lousy timing and heart-wrenching misfortune…” read more.

The investigation

On Oct 14, 2010 the Arizona Republic is reporting the outcome of Tempe Police investigation. The short answer is that because there were some conflict in witness statements regarding the color of the signal, police didn’t want to go forward on the red-light running charge, which would have precipitated a 28-672 misdemeanor criminal charge. Presumably she agreed to plea responsible to speeding in exchange for not perusing those charges.

I would like to read the DR because it seems odd that there were only 3 independent witnesses at that busy intersection at rush hour.

This is a bit slow (almost 5 months?!) for this sort of investigation.

….

Not One More Foundation Announces to all Arizona Cycling Teams, Clubs, Community and Friends a special Fundraising Ride to “Link the Lake” for Jay Fretz. Sat Dec 4th… see more on the arizona brumby’s site.