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Ask Our Lawyer - July 2008

Good thing this wasn’t a lawyer’s league game!

Q: I was severely injured playing softball. I was intentionally kicked in the head by a player sliding into base. There are many witnesses to the fact that the kick was directed at my head. Do I have a case against him?

A: A court case in the midwest may provide some guidance. In that case, the injured party alleged willful and wanton negligence regarding illegal body checks in a hockey game. The court held that body checks are an inherent part of the game and that a participant becomes liable only when the conduct is outside the range of normal activity in that sport. The court dismissed the claim, saying that none of the allegation was alleged outside the normal rules, implying that if the claimant had made such an allegation the claim would have been allowed. In your case, tough slides into base are pretty regular, but if the facts confirm intentional conduct and you alleged this conduct was outside the normal activity, you may have a case.

Deal Gone Bad

Q: I sold my landscaping business to my ex-best friend. The deal was on a handshake. He has had it for a year and now wants out of the deal. We have no written agreement. Do I have anything to stand on? He told me to shove it since it was not in writing.

A: Courts require that there be a meeting of the minds. It appears that both of you have agreed on the main terms in that he has operated the business for a year without dispute. You can prove the terms by the acts of the parties. I say you have an enforceable verbal contract that is enforceable in a court of law. You will have a harder time proving the terms and it would have been helpful in proving the terms if that agreement was in writing. But that does not mean it is not enforceable. Go for it.

Harassing Witness in Divorce Case

Q: I have been the subject of false 911 calls alleging erratic driving and saying that I may be intoxicated. I believe the root of the problem is because I am a witness in favor of the husband in a divorce case. The wife is the caller. What can I do?

A: Immediately report this occurrence to the court. All states have laws prohibiting witness harassment. This activity clearly fits within that category. Always get the name of the police officer and make book on the false stops. If the wife can be identified through phone records and voice recordings, the prosecutor should file charges against this person. Good luck.

Packing heat in Illinois

Q: I target practice with my pistol and carry it in the center console of my truck on the way to practice. The console is lockable. If I am stopped and searched on the way to target practice, am I legal in Illinois?

A: I would like to give you a good feeling answer and say yes, but a disturbing Illinois case held that a defendant could not raise that same issue before a jury and ask that the jury determine whether a locking center console was a "case" or "container" within the exception to Part 24-1.6 of the Criminal Code. Fortunately, a 4th District Appellate Court disagreed and reversed that case. The safe answer is to get a lockable gun case and keep it as far from you as possible. Some states offer lifetime permits to carry. Whatever happened to the Second Amendment in Illinois?

Getting Stopped on the Road

Q: Recently, I was pulled over by the state patrol, and was ticketed for not having a motorcycle endorsement. I asked the patrolman why he stopped me, and if I was doing something wrong. He said no, he was stopping motorcycles, checking for licenses. He said that he didn't see anything wrong with my riding. My question is, can he pull me over for no reason?

A: They cannot do this! This kind of selective violation of our Fourth Amendment rights is why we need more lawyers. In general, in order to stop a motor vehicle, an officer must have reasonable suspicion that a public offense is occurring or has occurred. There are many legitimate reasons for such a stop which include, but are not limited to suspicious activity, traffic violations, and equipment violations. Although it may surprise some of our more confused public safety officers, riding a motorcycle does NOT constitute a reasonable suspicion that a public offense is occurring. I believe that the officer overstepped his bounds in stopping you and that you have a legitimate chance to have the case dismissed.

RoadHazard.Org: High Friends in Low Places!

Our RoadHazard.org site gets a lot of attention, both from riders and from government officials. We got a letter recently from a state government official (who is also an A.B.A.T.E. member) who wanted to make sure that we sent the notices straight to him, so that he could make them top priority. It gives me great pride to know that our efforts are making a difference in getting things done. Unfortunately, not everyone seems to be on the straight and narrow. We received the following from one of our correspondents:

Q: I understand that if a municipality is informed of a road hazard, “pothole,” etc., that if they neglect to fix it in a timely manner and someone has an accident because of it or damages their vehicle, that municipality is liable. If this is correct, can A.B.A.T.E. sue the state for putting us in danger because of their inaction in releasing the funds to fix dangerous stretches of roadway?

A: No, and that’s precisely why RoadHazard.org is so effective. The actual cause of action that gives a person the right to sue doesn’t occur until that person suffers a loss – there’s no effective way to compel a government agency to do something that is in their discretion to do or not do. The only right we have to ask for damages once a loss has happened. Additionally, as we have explained before, the governmental agency has to have actual knowledge of the existence of the hazard before they can be held liable for a loss. That’s why the RoadHazard.org is so important. We keep a record of all the hazards that people report to us, so we can help prove that the agency had knowledge of the hazard. Keep those reports coming - we are doing some good!

Miracle Ride: A Fantastic Success!

Fifteen years ago, I had high hopes for the Miracle Ride. I hoped that it would be chance for the motorcycling community to come together to have fun and to make a difference for Riley Hospital and for sick children. Fifteen years later and more than $2,000,000 later, the Miracle Ride is a fantastic event, a fabulous fundraiser, a great time for everyone involved and a heart-warming example of the best of all of us, getting together to help a great cause. This year, we raised a remarkable $365,000 and had more than 6,000 participants. Many thanks go out to everyone who spent uncounted hours organizing and bringing this event off, and to everyone who participated, including our Governor, who led the ride.

Endorsement and the Skills Test

Q: Last fall I got a notice from Illinois that my license runs out Feb 19th at which time I turn 76. I have a spotless driving record and all I had to do was take a driving check in my car. When I finished the driving test in my car they said I had to also take one on my motorcycle or lose my endorsement. I went home and got my bike and went back to the facility at which time they said I couldn’t take the test on that bike as it was too big. I ride a 2002 Goldwing. Now I have a $15,000 motorcycle I can't ride legally. According to them, I’ll have to start the process all over again. I've been riding for 50 years, no tickets, no accidents and in good health. I really don’t see what they want from me. I'm living proof I know what I'm doing. Any help on this matter would be most welcome. Thank you.

A: Sadly, what we have learned is that yes, you do have to take a skills test according to the Illinois Motorcycle Operator Manual. To obtain a motorcycle classification on your driver’s license, you must pass a separate motorcycle examination. Drivers under 18 also must successfully complete a motorcycle training course approved by the Illinois Department of Transportation. Persons over 18 who successfully complete an IDOT motorcycle training course are not required to pass a written or driving examination at a Driver Services facility. The waiver does not apply when renewing current driver’s licenses.

The problem then becomes when you try to take it and you’re told your bike is too big for their course and just told you are out of luck. Through our friend, George Tinkham, we found that the Champaign, Illinois driver’s exam station was too small for most people to pass on a large bike. However, a rider would get three tries “for his money.” When asked if one could keep trying if he/she failed 3 times it was stated yes, but that the person would have to pay either $5 or $10 (the person wasn’t sure) for the opportunity to keep trying. We also found out that at least the following facilities have larger testing areas that can accommodate large motorcycles, such as Goldwings. Here are the locations and their telephone numbers: Tuscola (217) 253-2813, Rantoul (217) 892-8773, Monticello (217) 762-2841.

The Illinois Secretary of State has the discretion to choose the location and size of examination facilities. In this instance, the facility is too small for certain vehicles. Other facilities in the area, however, apparently are large enough to accommodate big motorcycles, like a Goldwing. It is unlikely if a court would find that the Secretary of State had abused his discretion in choosing the subject site in Champaign. Therefore, about the only thing you can do if you love riding big bikes is find a facility near you that has the larger testing area. So keep in mind that when you renew your license be sure to check and make sure the facility can accommodate your motorcycle size.


Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services