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Ask Our Lawyer - November 2010

The Supremes to the Rescue?

Abate is off to the Supreme Court

The Illinois Supreme Court has agreed to hear an appeal by A.B.A.T.E. of Illinois that will determine the extent to which the Illinois Cycle Rider Safety Training (CRST) Fund is protected from fund sweeps that would use money in that Fund for non-motorcycle related purposes. Rod Taylor and George Tinkham of ABATE LEGAL, will argue the case before the Supreme Court. ABATE had sued the then governor Rod Blagojevich for swiping the money and using it for other purposes, when the funds had been placed in a special trust in order to secure it from executive hands.

Over a year ago, Sangamon County Circuit Clerk Leo Zappa ruled that the General Assembly failed to create a trust with the CRST Fund because not all Common Law (court made law) requirements were met. Last year, the Illinois Appellate Court ruled that the CRST Fund was a trust, but that the General Assembly could confiscate funds outside the State Treasury and allow that money to be used for any purpose the Governor desired. That court issued a divided opinion with one appellate judge favoring ABATE's position. Now the Supreme Court has agreed to hear the case.

This was a good day for ABATE as we have worked hard to get us to this point. This is a rare event for a SMRO to reach the highest court of the state (I believe this is the first and only in the country). I look forward to presenting ABATE's argument to the Justices of the Illinois Supreme Court along with George as we did in the Illinois Appellate Court, as I sense that the Illinois Supreme Court may not agree with the Appellate court and may be favoring our cause/arguments. If they agree with us, ABATE's case will be cited by future generations for decades. In setting aside the bad acts of former Gov Rod B et al, we do a good and honorable deed here and I know in my heart and my head that we are right. I just have to be convincing enough to persuade the Illinois Supreme Court as to the law that should be applied. We already have good facts. I will do my best for us all. Wish George and me Godspeed, we need it.

RoadHazard Gets Your Problems Noticed!

RoadHazard.org has been in action for several years, notifying state and local officials of hazardous road conditions that you report. Occasionally, we like to report back some of the feedback we get from the government folks. We recently heard from Robert Secrest, the Coordinator of Motorcycle Ohio, which is part of the Ohio Department of Public Safety. He noted that he forwarded the letter on to the appropriate headquarters to fix the issue we reported. He also said, “Thanks for letting us know about the problem.” I’ve found that almost always, the government officials really want to hear about these hazardous conditions so that they can get fixed. Keep those reports coming. Simply log on to www.roadhazard.org.

Slippery Is as Slippery Does

Railroad Crossing Discrimination Against Bikers

Ohio member Tim Cookson wrote us recently. Here’s his letter:

Q: On October 4, 2010 I lost control of my motorcycle at a railway crossing on CR 39 in Tuscarawas, Ohio. Neither my daughter nor myself required any medical treatment as our speed was extremely slow. I estimated our speed at 15 to 20 MPH. After crossing the metal rails, both the front and rear tires of the bike came out from under me. The bike slid through the turn and came to rest with the front wheel under the guardrail in the opposite lane. Gnadenhutten police happened on the scene a few minutes later, but as they did not have jurisdiction, the officer radioed the accident to the Tuscarawas County Sheriff after discussing the accident with me.

The Gnadenhutten officer then told me that because I didn't need a report for insurance (the bike has a salvaged title and I therefore carry only liability/damages required by the State), there were no injuries requiring treatment and no property damages, the Sheriff Department was not going to send a unit. My father arrived on the scene with a chain to help pull the Goldwing from under the guardrail, and I checked the bike for damages. I was inserting the key to see if it would start when several State Troopers, an ambulance, and EMS arrived on scene. Needless to say, the State Trooper cited me for ORC 4511.202, failure to maintain reasonable control.

Now this is a crossing I have crossed many times in both dry and wet weather at even higher speeds without any incident. The speed limit on the road is 55 MPH. I was not in a hurry and I know that any rail can become slippery when wet. It had stopped raining shortly before the accident, but I wasn't in a hurry and I had my daughter on. She even commented that I was going slow.

When I walked back to try and figure out what happened, I found the wood lining the metal rails was so slippery that my feet were actually sliding on the wood. The area surrounding the metal tracks was like ice. The air temperature was 51° F, so ice was not a factor. Evidence of my slow speed is that only the plastic was broken on the bike. I rode the bike home. Even my headlight and windshield were not broken.

I believe that the railroad shares some responsibility for the accident for using material that presents a hazard to motorcycles when wet. Many other crossings use materials such as concrete, asphalt, or rubber that have a higher friction co-efficient. There are no warning signs stating crossing can become extremely slippery when wet. I would like to come away from this without any points or fine as I haven't been able to find work for nearly a year and a half. I can't afford a lawyer and the fine is only $120 so it probably isn't worth it anyway. I was hoping to convince the Judge that I exercised "reasonable" control and that other circumstances contributed to the accident, but I could not find any appeals cases on the internet that apply. Do you have any suggestions or should I just send in the money?

A: Congratulations on a good outcome of your crash. I would fight the ticket if you have time and the costs are reasonable. We will help. The law you were charged with violating is designed for those who lose control by doing something wrong. Your actions in saving yourself and your daughter should be commended, not punished. I can not imagine any well-thinking judge will hold you accountable for this incident. As to the police officer that issued the citation, provide me his name and badge number. His supervisor needs a letter from our office. You did not lose control. Control was taken from you by an improperly marked and designed crossing. As you know, many states have limitations on grade crossing angles. Any crossing angle less than 80-85 degrees is dangerous. Anything less than 90 degrees should carry a warning. Calculating the angle of a railroad crossing at night traveling 55 mph is nearly impossible on some crossings, so all states should warn and post notices as to the angle of the crossing. If the state will not post a warning of the dangerous angle, maybe ABATE should post it with our own signs, especially the crossing that got you.

Motorcyclists Are Screwed Again?

Towing Protection in Indiana, Illinois and Ohio

Q: I recently went to see an official at the Illinois Commerce Commission to talk about the legality of towing cars from an apartment complex. I am a tenant and was looking to find out under what circumstances the owners association can tow someone’s car. While talking to the official I asked about motorcycles being towed. She told me that the I.C.C. does not regulate motorcycles being towed like they do with cars. Does this mean that my motorcycle can be towed away much easier than a car then be charged higher rates because they aren't regulated. After speaking with an officer from the Illinois Commerce Commission, he advised me that motorcycles are, in fact, exempt from regulation from the ICC. This is due to the fact that special equipment is needed to tow a motorcycle so towing companies are allowed to charge as they see fit. (Which leads me to believe it is more difficult to tow a motorcycle) The exemptions are found under 625 ILCS 5/18, which states that “this Chapter shall not apply to the relocation of motorcycles. Such relocation shall be governed by the provisions of Section 4-203 of this Code.” Section 4-203 does not impose any cost restrictions on towing motorcycles.

A: Ron, it looks like we motorcyclists were left off the list of protected species in Illinois where the legislature saw fit to protect autos from gouging rates. The protecting statute limits the tow bill for cars but does not apply to motorcycles. It seems the same pirates gouging cars would want to gouge us as well. Now the tow companies in Illinois can do it with a vengeance by saying that the legislature allows them to charge what they want. Ohio also has legislation on maximum tow charges, but does not exclude motorcycles. Indiana has not enacted any protections against gouging tow bill rates (maybe the tow companies are kinder and gentler there). Also, some local cities and towns may have ordinances that regulate tow fees. Keep me posted – we may need a law.

Ride Safe and Free,
Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

Call us at (800) 25-RIDER

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2010, A.B.A.T.E. Legal Services