Scottsdale settles bicyclist injury lawsuit

There was a bunch of information published about a settlement between a bicyclist injured in 2014 and the city of Scottsdale; After much back-and-forth the city eventually settled the case for $120,000; significantly less than the $1M ask, but significantly more than the city’s earlier offer of $60,000.

The city staff reports mention the cyclist had (already) settled with the driver, presumably the driver’s insurance, and as this was a strike-from-behind they probably just accepted liability. The theory of liability with the city is they should have, but did not, provide a bicycle lane or shoulder.

It provides an look at the machinations of personal injury law that those of us on the outside don’t usually see.

According to City of Scottsdale staff report and news reports:

Crash occurring May 17,2014 — this crash doesn’t appear in state crash data, indicating Scottsdale PD wasn’t involved — which seems unlikely — or the report was otherwise lost or not even taken(?)

Location: Rio Verde near 120th St, Scottsdale. (street view 2014; sometime between 2016 and 19 road was rebuilt). Rio Verde is a.k.a. Dynamite Blvd west of here.

lawsuit in Maricopa County Superior Court Marcellus v. City of Scottsdale, CaseNo. CV2015-091140 Plaintiff Robert Marcellus represented by John Leader , and the city is represented by Robert Murphy (is that outside counsel?)

City claims the BICYCLIST is at fault? Ludicrous!

I actually don’t see or understand the bicyclist’s theory of liability that the city was negligent for not providing a bike lane; HOWEVER, where does the city get off saying …

“…(the bicyclist) is at least partially, if not wholly, at fault for the accident” — Staff Report 9/17/2019
“The City … contends Plaintiff is at least partially, if not wholly, at fault” — yourvalley.net
“The city denied liability and argued that Marcellus was at least partially liable for his own injuries.” — scottsdale progress

This appears in both news articles on the subject, it appears to have been information someone at the City of Scottsdale fed to reporters.

When the driver of the vehicle (the vehicle behind) strikes a vehicle ahead, the striking driver is at fault, and the struck driver is not at fault. Period.

The bicyclist was struck from behind; The staff report states that the bicyclist says he was traveling on the small shoulder when struck — presumably the motorist drifted out of the travel lane, side-swiping the bicyclist. Since there’s apparently no crash report (see below), I can’t corroborate any of that with what police may have observed.

Claiming it’s the bicyclist’s fault calls to mind this passage from an Iowa Supreme court case finding the motorist solely at fault for striking a bicycle in the rear — “ascribing negligence to such choices would be ludicrous if applied to any other motorist” (see Vasconez)

Scottsdale claims to be “bicycle friendly” GOLD — it’s not friendly to be a victim-blamer.

Police Report No Police report? (Update: yes, but see next section) 

Short answer: I inexplicably can’t find it in ADOTs statewide crash database; but yes, there is a police report, skip down below…

There are no reported crashes fitting that description by date, location or anything. A crash report is required for any injury involving a MV. It seems unlikely the police were not summoned, but who knows… in any event why no crash report? So in any event, there is a police report, and it is in ADOT crash database.

Which reminds me of another Scottsdale story: A bicyclist contacted me last year about a crash he was involved in in Scottsdale, Oct 2017; a motorist ran a right-on-red colliding with him as he came through the green light. His injuries weren’t life threatening, but were significant; he is well over a year later hoping to be finishing physical therapy for the injuries he sustained, and still had pain. He told me that:

9-1-1 was called twice within 40 minutes, yet police never came to the scene and the dispatcher told me on the second call, “The EMS can gather the information needed.”

His crash isn’t reported, either. Is something else going on in Scottsdale, see table below. The number of reported bicyclist crashes dropped off dramatically around 2014. No one can explain why but the most likely cause is some sort of policy shift in how PD responds (or doesn’t respond, as the case may be) to bicyclist crashes.

Police Report 14-11036

Called SPD records… Yes, there IS a police report, and a crash report (the crash report, as I said above appears to not be in ADOT’s crash database). 2014-05-17, 0908 hours. It’s ADOT incident 2855110

VERY interesting, very, long story. It involves hit-and-run; but the driver/suspect was eventually located.

The driver initially stopped and returned to render aid; another motorist, a nurse, also stopped. At some point when fire/emt arrived, the driver believes he was “ordered” to leave the scene (you know, without anyone knowing who he was). A witness remembered the driver was driving a maroon car, and thought the plates read ASUDOC; she was also preturbed that fire people ordered (or whatever) the driver to leave. A couple of weeks later, just out of the blue, neighborhood traffic detail informed the investigator that someone in the area had reported a suspected drunk driver in the same area that was driving a maroon/red car with plates USADOC. Bingo! The driver was eventually (it took another couple of weeks to actually make contact; and said the emt guy told him to leave the scene, so he left.

Police referred hit and run charges but County Prosecutor declined to bring any. How does that work? Although the driver did remain at the scene to render aid (a violation of which would have been a felony); he plainly did not exchange information (a misdemeanor, which could be pursued in city court), as required by law. In any case, the city prosecutor could have and should have proceeded on a 28-663A1 charge (a misdemeanor, in city court), that simply says a driver failed to provide his information — which is exactly what this driver did.

It also appears Scottsdale, after being declined by the county, didn’t do anything else; the driver plainly side-swiped the bicyclist. Which should either by a 28-735 and/or 28-729 (and 28-672; if he “failed to maintain proper lane”; i wasn’t real clear from the report where or if they established a point of impact).

Crash location per ACR: E Rio Verde Dr, approx 120′ east of 120th St, in the westbound shoulder; (street view 2014; note that sometime after 2016 road was rebuilt and the configuration is very different now). Rio Verde is a.k.a. Dynamite Blvd west of here.

Injury severity is listed as a ‘3’, a non-incapacitating injury. I would think this is clearly a ‘4’, incapacitating.

Also of note: SPD used photo-enforcement cameras to help locate the suspect; but that didn’t come to anything (it was the vanity plate that was the big break)

 

 

Year reported bicyclist
crashes in Scottsdale
2009 81
2010 84
2011 65
2012 97
2013 91
2014 73
2015 33
2016 25
2017 37
2018 47
2019 46
2020 46

(2020 data as of Feb 2021). Here’s the query:

SELECT i.IncidentYear, count(*) FROM incident i 
LEFT OUTER JOIN LOVCity ON i.CityId = LOVCity.id LEFT OUTER JOIN LOVCounty ON i.CountyId = LOVCounty.id 
WHERE TRUE AND sF_Bicycle AND LOVCity.name LIKE "scottsdale%" AND eInjurySeverity IN (1,2,3,4,5) GROUP BY i.IncidentYear;

 


This trend isn’t unique to Scottsdale, the same pattern exists in ‘Chandler’, ‘Flagstaff’, ‘Glendale’, ‘Gilbert’, ‘Mesa’, and , ‘Tempe’ — none has been explained, and curiously the two largest cities, Phoenix and Tucson don’t exhibit this pattern.
.

Sovereign Immunity — when does SI apply? ( #si )

Rules about bringing lawsuits against the government in Arizona are located in ARS Title 12 / Chapter 7 /
Actions Against Public Entities or Public Employees; Of particular relevance is:

12-820.03. Affirmative defense; resolution by trial

A. A public entity or a public employee is not liable for an injury arising out of a plan or design for construction or maintenance of or improvement to transportation facilities, including highways, roads, streets, bridges or rights-of-way, if the plan or design is prepared in conformance with generally accepted engineering or design standards in effect at the time of the preparation of the plan or design and the public entity or public employee gives to the public a reasonably adequate warning of any unreasonably dangerous hazards which would allow the public to take suitable precautions.

B. If a genuine issue of material fact exists as to whether the public entity or public employee has met the requirements of subsection A of this section, the issue shall be resolved by a trial before and separate and apart from a trial on damages.

So it would appear — based only on the circumstances outlined in the staff reports and news articles — that the plaintiff was able to so far convince a judge that there is, at least, a “genuine issue of material fact” about the idea that the city is required to provide some form of separate bicycle accommodation.

Scrolling thru the lengthy court history, there was a veritable deluge of motions made by Scottsdale on 8/8/2019:

Note: city of scottsdale’s motion in limine to exclude hearsay statement by non-party mark robbins
Note: city of scottsdale’s motion in limine to exclude dissimilar accidents
Note: city of scottsdale’s motion in limine to exclude any evidence that plaintiff has any loss of earning capacity
Note: city of scottsdale’s motion in limine to exclude any evidence that plaintiff’s knee symptoms are related to this accident
Note: city of scottsdale’s motion in limine to exclude any lay witness opinions that the road was dangerous
Note: city of scottsdale’s motion in limine to exclude any evidence that plaintiff has any current symptoms related to the “concussion” or “stroke” diagnosed at the hospital

.

 

 

… litigation / tort / liability /

6 thoughts on “Scottsdale settles bicyclist injury lawsuit”

  1. Counts of Bicyclist Crashes in Scottsdale

    SELECT IncidentYear, count(*)
FROM incident i LEFT OUTER JOIN LOVCity ON i.CityId = LOVCity.id 
WHERE TRUE AND sF_Bicycle AND LOVCity.name LIKE "scottsdale%" AND eInjurySeverity IN (1,2,3,4,5)
GROUP BY 1 ;

  2. If the cyclist is claiming that Scottsdale is at fault for maintaining a roadway that was inherently hazardous for bicycle travel (no bike lane) then I can see the logic in counterclaiming that the cyclist is at least partially responsible for continuing to ride on such a dangerous road. This would be especially true if the person was engaged in recreational riding (as is common on Dynamite) as opposed to commuting to and from home. If something is hazardous and you choose to use it when you have other choices, then it seems at least arguable that you are partially at fault if you get harmed while doing so. Perhaps Scottsdale’s assertion is based on something like this that is disconnected from the immediate cause of the accident.

    I’m not saying this based on any legal knowledge or foundation, but merely on my common sense notion of responsibility. I realize that might be very disconnected from the law.

  3. If the road was being rebuilt – I am going to assume the bicyclist was riding close to/on the edge line and the motorist tried to squeeze past. When riding close to/on to the edge line is where very scary close calls and side swipes occur.
    The best practice is to take the lane and use the concept of control and release as outlined in the CyclingSavvy traffic safety training.
    http://www.cazbike.org/cycling-savvy/

  4. What liability do the police have by not responding to an accident. I do not believe the EMS is required to report any information regarding a traffic accident.
    I believe the dollar amount for reporting accidents was raised from $1,000 to $2,000. When I was hit many years ago, I was given the reason for not filling a report was the damage was less then $1,000. I was much younger and did not realize I needed to push for a report. Even if I was not going to claim damages. I am thinking we need to ask our ADOT bicycle representative to push for all reporting of bicycle accidents. Another option is a campaign to petition our state representatives to make reporting of bicycle accidents mandatory.

  5. Hi Jay,
    I don’t have any inside track on this either; I mean I don’t know what the city is referring to. But picking up on you line of thinking I think is important — You mention two different notions;
    In the first, you posit that a bicyclist “at least partly responsible” for whatever happens to them on some particular road.
    Second, you bring in the concept of the purpose of a bicyclist’s trip; suggesting that regardless of the bicyclist’s actions, if he ends up in crash he is, again, always at least partly responsible for the crash if his trip is somehow deemed elective.

    Both these concepts — you call them common sense notions of responsibility — would be considered silly if you tried to apply them to motorists; but somehow it seems acceptable to apply them to bicyclists (and often, pedestrians).

    All modes of transport; walking, biking, motorcycles, small cars, large cars, SUVs/light truck, real trucks have varying degrees of (generally increasing) risk. Likewise all roads are risky.

    Every now and then I point them out how silly this purpose of trip would sound if somebody would actually say it (but nobody ever does) — Ann Day was killed while driving in her car by an impaired driver who crossed over and killed her headon. She was coming home from the gym, certainly an elective trip. She was driving a car, and not a heavy pickup (or a semi); very risky. She was traveling on a high-speed road, again very risky — why didn’t she take an alternate route? To say she bears one iota of liability would be ridiculous.

    Here’s a list of other ridiculous remarks in the context of a plane that crashed into a motorist on a freeway; the motorist died. https://azbikelaw.org/stupid-things-people-wont-say/

  6. Yes, $2,000 is now the magic number for property damage. But there’s also an “or ANY bodily injury” clause.
    In my view, practically all bike-MV collisions result in some bodily injury.
    The statute that references the $2,000 is 28-667, have a look at the 28-66X series:
    https://www.azleg.gov/arsDetail/?title=28
    Even in the case where it’s <$2,000, NO injury and no citations, an officer "SHALL complete a portion of the written report"; all reports must be forwarded to adot (that's section C5) Exactly what games cities (or whatever agency, DPS, sheriff, etc) play might vary -- in the case I mentioned that was told to me, we know EMS was dispatched (and arrived) but police never arrived for unknown reasons but the end result is police, of course, didn't make a written report (a crash report, the one that gets transmitted to adot). Another interesting tidbit is "The driver of a vehicle involved in an accident resulting in injury to or death" is required to notify authorities 28-666. (and as a sidenote, it'a not completely clear if in this context a bicyclist is "the driver of a vehicle"; also the term "accident" isn't defined in statute); in any event the term "injury" is VERY broad, and I'd again claim practically all bike-MV crashes result in some injury. In the anecdote i mentioned above, the authorities were notified, so the motorist & bicyclist performed their duties with respect to 28-666, but the police never followed up. Keep in mind with regard to ADOT is they are more-or-less just passive receivers of all this information; they don't control what the agencies do... so it's a tough problem. Every now and then I stumble on cases that I know happened but for unknown reasons don't appear in the state database, unless I bring it to their attention -- this is obviously very hit-and-miss. (example: this one, a very serious injury case, was missing for over a year)
    When a case doesn’t get into the database it’s nearly impossible for an outsider to know where the ball got dropped.

Leave a Reply

Your email address will not be published. Required fields are marked *