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Bike law expert says PBOT’s crossbike markings create confusion

Bike law expert says PBOT’s crossbike markings create confusion

A crossbike at Tillamook and NE 15th. (Photo: Swanson, Thomas, Coon & Newton)

A crossbike at Tillamook and NE 15th.
(Photo: Swanson, Thomas, Coon & Newton)

This post is part of our Get Legal series made possible by Swanson, Thomas, Coon & Newton.

When we first reported on crossbikes in August, concerns about them began almost immediately. While some people were happy to see the increased visibility for bicycling traffic at crossings via the big green stripes, others said the treatment creates confusion.

Now Ray Thomas, the Portland lawyer who literally wrote the book on Oregon bike law, is adding his voice to the chorus of concerns.

Before we get into his critique, let’s review what crossbikes are and what problem they aim to solve.

The Portland Bureau of Transportation began thinking about them five years ago after seeing how effective curb extensions were for people on foot. When a sidewalk extends out into the roadway and someone is waiting at the corner, cross-traffic tends to stop more regularly. So PBOT Bike Coordinator Roger Geller figured the same would hold true for bikeway crossings. “We we wanted to indicate that these intersections aren’t just pedestrian crossings, these are also bike crossings,” Geller told us in a 2011 interview. “The green bike bars indicate this is an extension of the bikeway through the intersection.” (Note: PBOT uses crossbikes on neighborhood greenway routes.)

Since early August PBOT has painted 21 intersections with crossbikes.

PBOT's new crossbikes

The crossbike at N Williams and Rosa Parks Way as seen from the cross-traffic view.
(Photo: J. Maus/BikePortland)

But here’s the rub: Traditional crosswalks have a clear legal standing. Oregon law (ORS 811.028) says you must “stop and stay stopped” if someone is attempting to walk or roll across an intersection from the sidewalk or corner. However the same legal protection is not given to someone in the roadway so cross-traffic doesn’t have any legal obligation to stop when you pull up into a crossbike.

The crossbikes have also been painted in a way that’s inconsistent: Some of the green striping is connected to an existing white crosswalk, while in other intersections (and in official PBOT educational posters) there’s a separation between the crossbike striping and the crosswalk.

With that, let’s get to Thomas’ analysis:

“In my world as a bike lawyer I get involved when things go wrong, sometimes terribly wrong. And if a bicycle rider in a crossbike moves out from the stop sign to cross the through street [and is involved in a collision]… the hard legal question must be answered of who had the right-of-way.”
— Ray Thomas

In a nutshell, Thomas feels that crossbikes add further confusion to intersections. We say “further” because Thomas has already shared his concern for what he calls “ambiguous intersections” — places where a neighborhood greenway crosses a larger street and many people (on bikes and in cars) aren’t sure if bicycle riders have the right-of-way or not.

Here’s how Thomas explains his discomfort with the way the crossbikes have been implemented. “While one might argue that to the extent it is ambiguous whether or not a motorist must stop for a cyclist in a crossbike and the motorist stops when it is not legally necessary to do so, that is OK because it promotes safe passage of vulnerable roadway users. But Geller would certainly admit that the crossbike does not somehow expand the protection of the Oregon right-of-way in the crosswalk to the crossbike crossings.”

And here’s Thomas’ underlying legal analysis:

The Oregon Traffic Code clearly requires that a bicyclist must stop at a stop sign and wait to proceed until the way is clear by yielding to cross traffic on the through street (ORS 811.260(15)). However, if the bicyclist chooses to cross the street in the crosswalk then approaching traffic is required to yield to the bicyclist because in a crosswalk, bicyclists have the same rights as pedestrians (ORS 814.410(2)). (Please note that one still cannot leave a curb or other place of safety and move out in front of approaching traffic that is so close as to constitute an immediate hazard per ORS 814.410(1)(a), I mention that in case anyone was tempted to do such a thing).

In my world as a bike lawyer I get involved when things go wrong, sometimes terribly wrong. And if a bicycle rider in a crossbike moves out from the stop sign to cross the through street because, for example, approaching traffic from one direction has stopped for them, but then another automobile coming in the other direction does not choose to stop and hits the rider, or a car behind the stopped car pulls around and then hits the cyclist, the hard legal question must be answered of who had the right-of-way. And the answer has serious legal consequences for who will have to pay for medical bills and damages. And who might get a ticket.

If the bicyclist is in the crosswalk (defined in ORS 801.220) then the driver is required to yield the right-of-way. But if the rider is not in the crosswalk then the bicyclist has violated the stop sign law in ORS 811.260(15) by failing to stay stopped for traffic on the through street.

In my view, crossbikes create the same legal problems that exist for the ambigous intersection at North Going and Martin Luther King Jr. Blvd — when everything works fine, great; but when it doesn’t the bicycle rider is likely going to be left holding the traffic citation for disregarding the legal requirements of the stop sign.







In an ideal world, Thomas argues, the crossbike would simply be brought into the same legal definition of a crosswalk — especially since PBOT seems to have no qualms about striping them directly adjacent (with no gap) to existing crosswalks. If the crossbike markings simply expanded the width of the crosswalk then people using bicycles in the main roadway would have the same legal protection and right-of-way as someone trying to cross from the sidewalk. That sounds great; but there’s a hitch.

Back to Thomas:

PBOT educational poster. Notice how the green crossbike marking is separated from the white crosswalk marking.

PBOT educational poster. Notice how the green crossbike marking is separated from the white crosswalk marking.

There may be a legal “color problem” at work here because just as the crosswalk’s legal definition requires only “markings or other markings” it also stipulates that it must “conform in design to the standards established for crosswalks under in ORS 810.200.” That statute says the Oregon Transportation Commission, “shall adopt a manual and specifications of uniform standards for traffic control devices…” Since the State of Oregon’s adopted manual is essentially the Manual of Uniform Traffic Control Devices and the MUTCD says crosswalks must be marked with white paint, then there may be a problem of definition.

Section 3B.18 of the MUTCD, “Crosswalk Markings” states: “When crosswalk lines are used, they shall consist of solid white lines that mark the crosswalk. They shall not be less than 6 inches or greater than 24 inches in width.”

Since Thomas is a bike safety advocate, he has also thought of a solution. Why not simply make the crossbike stripes white? “If the wider crosswalk expands to include the crossbike within it, doesn’t that just expand the coverage of the umbrella of right-of-way in a good direction?” he wonders. “If we wanted to make the crossbike into an arguable fully legal crosswalk without the legal ambiguity then we would just cover the green paint over with white and be done with it, or put some green at each end of the white paint just to denote the new design.”

In conclusion, Thomas wants to raise awareness that crossbikes — as currently implemented — are not legal crosswalks. “For now,” he says, confusion is likely to reign and, “the best course of action is to assume cars do not legally have to stop.”

We asked PBOT to respond to Thomas’ concerns. Spokesman John Brady said, “The anecdotal feedback we’ve been getting is that the crossbikes are welcomed by people on bicycles and they haven’t been causing confusion. We believe there is a growing awareness among Portlanders that green paint is associated with bicycling. That growing awareness is also something that works against confusion.” Brady was quick to add that they aren’t relying only on anecdotal evidence. Portland State University researchers are studying the new markings for before/after behaviors.

Depending on how those observations play out, we might see some tweaks to the crossbike design in the future.

— Jonathan Maus, (503) 706-8804 – jonathan@bikeportland.org

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Local environmental group targets “rolling coal” offenders

Local environmental group targets “rolling coal” offenders

Image from notice of intent to sue filed by Northwest Environmental Defense Center.

Image from notice of intent to sue filed by Northwest Environmental Defense Center.

“Rolling coal” is a vile act and one of the many deviant behaviors commonly displayed by people who operate motor vehicles.

If you’re unfamiliar with the term, let us explain how it works.

Imagine you’re out enjoying a nice bike ride on a beautiful road. Then the driver of a large diesel truck comes up next to you and purposely slams on the gas pedal to emit a huge plume of toxic black exhaust right in your face.

We told you it was vile. But unfortunately it happens more than you might think.

“We feel there should be accountability for this sort of hostile, mean-spirited, environmentally harmful, and ultimately dangerous behavior.”
— Mark Riskedahl, executive director Northwest Environmental Defense Center

We reported on rolling coal a few times in 2014 (including once when someone rolled coal and the bike rider happened to be a police officer) and our stories caught the eye of the Northwest Environmental Defense Center at Lewis & Clark Law School. NEDC Executive Director Mark Riskedahl told us last week that they’ve started a “rolling coal accountability project” because it pollutes the air and it’s just plain, “morally reprehensible behavior.”

The practice has also been deemed illegal by the Environmental Protection Agency and is part of the Obama administration’s efforts to improve air quality.

Also fueling Riskedahl’s work: his wife Melissa Powers is a bicycle rider and law professor who happens to teach a course on the Clean Air Act at Lewis & Clark. She was recently a rolling coal victim herself while riding near Manzanita on the Oregon coast.







Riskedahl says his team (made up of law student volunteers) are putting together a list of potential targets for enforcement actions. They are specifically going after retailers who sell and/or install special devices that allow truck owners to bypass emissions control devices.

And the NEDC wants your help. “We would love to identify the businesses in the region that have developed a reputation for being at the forefront of this hobby,” Riskedahl says.

The NEDC has already partnered with a group of attorneys in Utah and have sent a letter of intent to sue to Diesel Brothers, a Utah-based business that operates DieselSellerz.com and sells emissions control defeat devices.

Here’s an excerpt from the 16-page letter (PDF) that threatens the website owners with federal prosecution under violation of section 203 of the federal Clean Air Act:

Although diesel truck manufacturers such as Ford, Dodge and GMC design and install thousands of dollars of pollution control equipment and software in each of their modern trucks to meet federal emission standards, Diesel Brothers have been reversing that progress with the turn of a wrench and the click of a touchpad. The public is left to pay for the pain and suffering of air pollution related diseases such as asthma, emphysema and lung cancer.5 In submitting this letter of intent to sue, UPHE seeks to protect the public health, guided by the ethical standards of the Utah Medical Association “to prevent sickness whenever possible, to alleviate suffering, to cure sickness and disease insofar as it is humanly possible, and to prolong meaningful life.

Exhibits to the letter include eBay listings that advertise “full delete” (parlance for no emissions control) and videos like the one below that was posted online by “Heavy D Sparks“:

The letter also points out that dealers of these devices are subject to a fine of $37,500 for each illegally modified vehicle or engine and people who use these devices are subject to a civil penalty of up to $3,750 each day they are used.

Riskedahl wants to expand their work into the Portland metro area and they’re looking for leads. They are looking for retailers and individuals. “License plate numbers may come in handy too,” he says. You can reach the NEDC via their website.

— Jonathan Maus, (503) 706-8804 – jonathan@bikeportland.org

BikePortland is supported by the community (that means you!). Please become a subscriber or make a donation today.

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Is Biketown bike share for all? Or only the able-bodied?

Is Biketown bike share for all? Or only the able-bodied?

Handcycle ride wth Ian Jaquiss

Hand-cycle riders like Ian Jaquiss won’t be able to use Portland’s bike share system.
(Photo: J. Maus/BikePortland)

Portland is launching a bike share program with 1,000 bikes. But what about people with who need to ride a hand-cycle or a recumbent or a trike due to a physical disability? Will they be able to use this new system?

That’s a question raised by city council candidate Chloe Eudaly just six weeks before Portland’s Nike-sponsored Biketown system is set to launch.

“While it can be expensive to accommodate people with disabilities, excluding them also comes at a great cost. It may also violate federal law.”
— Chloe Eudaly, candidate for Portland City Council

Eudaly, who happens to be running against incumbent City Commissioner (and head of the transportation bureau) Steve Novick, posted to her election campaign Facebook page on May 24th that while she’s excited about bike share she’s also, “disappointed to find out that the program excludes people with mobility challenges.”

“How is a 1,000 bike program without a single adapted bike equitable or inclusive?” she wrote. Eudaly questioned how the City of Portland could afford “limited edition wrap designs” but not pay for adaptive bikes to be part of the fleet. “People with disabilities also often have diminished opportunities for socializing, recreation, and exercise and poorer quality of life and health outcomes as a result,” she continued. “So, while it can be expensive to accommodate people with disabilities, excluding them also comes at a great cost. It may also violate federal law.”

Eudaly is referring to Title II of the Americans with Disabilities Act which states that, “Public transportation authorities may not discriminate against people with disabilities in the provision of their services.”

We followed up with Eudaly, the City of Portland, a lawyer, bike share operators from other cities, the executive director of Disability Rights Oregon and others to learn more about this issue.

To Eudaly, it’s simple: “This is a matter of equity,” she wrote in an email to BikePortland. Here’s more from her email:

We have a whole office devoted to it now, which aims to recognize and remove “systemic barriers to fair and just distribution of resources, access and opportunity, starting with issues of race and disability.” Yet there was seemingly zero consideration given to making our Biketown program accessible to people with disabilities. I find this statement from the website particularly galling, “Biketown is a celebration of the Portland spirit: active, creative, inventive, and inclusive”, just not creative, inventive, or inclusive enough to include people with disabilities I guess.

There’s no mention of disabled persons access on the City’s bike share program website. There are several references to equity, but only as it pertains to ethnicity and economics. Bike share is absent from the available meeting minutes of the the City of Portland’s Commission on Disability (PCOD), a group that meets monthly specifically to advise the city on ADA-related issues. Suzanne Stahl, the current PCOD chair, commented on Eudaly’s Facebook post and said that Biketown “Must provide adaptable alternatives.” Stahl says the program also violates the federal Rehabilitation Act.

“It is a key question and we’re working toward an answer by talking to our peer cities and people in the disability community.”
— John Brady, PBOT

Portland-based Disability Rights Oregon is a nonprofit that offers legal assistance to people with disabilities. Their Executive Director Bob Joondeph said in an interview today, “It’s really unfortunate,” that the city doesn’t appear to have given any thought about this issue. “When the city gets involved in any type of public service, they have an obligation to make sure it’s accessible to people with disabilities.” Joondeph didn’t offer a legal perspective on the case and said so far no one has filed a formal complaint with his office; but he did say he’s experienced this problem with the City of Portland in the past. “We’ve run into this before where they launched something and it’s only at the very end where they say, ‘Oh yeah!’”.

Joondeph said this reminds him of when the city launched its first streetcar line without considering disabled persons in the station designs. “They didn’t think about it until the end.” When it comes to Eudaly’s criticisms of the bike share program, Joondeph said, “I think she’s got a point.”

We asked the Portland Bureau of Transportation if Biketown would be accessible to people with disabilities. Here’s the statement they gave us nine days later:

“The City is committed to seeing Biketown be successful for a wide range of Portlanders. We’ve been talking with our peers in other cities and are reaching out across the different communities of people with disabilities to listen and learn. Biketown will add to an already rich choice of transportation options.”

That didn’t answer our questions, so we had the following exchange:

So does this mean Biketown isn’t currently accessible to people with disabilities?

“I don’t think we can assume that given that there is a range of different types of disability,” replied PBOT Communication Director John Brady.

Was access to the bikes by disabled persons considered in the planning process?

“Yes, the topic of access and broader issues related to disability were part of the planning process,” Brady wrote in an email. “For example, in the station siting process, we have made sure that we comply with the Americans with Disabilities Act.”

That’s about station locations not impeding with ADA access; but how about the actual use of the bikes and the system itself? Or, put another way: If someone with a physical disability that prevents them from riding a standard bicycle wants to use Biketown, what would they do?

“Right, the way you’ve rephrased it is a key question and we’re working toward an answer by talking to our peer cities and people in the disability community.”







Dennis Steinman is an attorney with Kell, Alterman & Runstein L.L.P. in Portland and has over 20 years of experience in ADA law. He said no matter how you slice it, the City of Portland is required to make bike share accessible to people with disabilities. “Any public entity must make all of the services they offer accessible…. Any time Portland offers some form of new service, they have to do a self-evaluation as to how – if at all – it’s ADA compliant.”

According to Steinman there are four exceptions to the ADA law: If the accomodation leads to undue financial burden, undue administrative burden, if it would “fundamentally alter the nature of the program,” or if it would constitute a safety risk. In the case of Portland bike share, Steinman says none of those excuses would hold up in court. Financially, Steinman explained, cities are seen by the courts as having “endless pockets.” He’s never seen the administrative burden argument win, and he doesn’t think adding adaptive bikes into the fleet would “fundamentally” change the nature of the program or that there use would create a safety risk.

In my research of other bike share systems around the country I couldn’t find any major vendors that offer adaptive bikes or specific services for people that have disabilities. Capital Bikeshare in Washington D.C., one of the nation’s largest and most successful programs, mentions disabled access in their FAQ but simply points people to an email if they need “reasonable accomodation.” Capital Bikeshare says their bike share system is part of “part of a regional transporation system” that is ADA-compliant and therefore it’s legal under federal law.

Adaptive-Bike-Clinic-Flier-2016-2

Acting on a tip I contacted Dave Fotsch, the director of Boise Idaho’s bike share system “GreenBike”. Fotsch said they initially talked about making special accomodations for people with disabilities, but they didn’t in the end. “The range of disabilities is so wide and the possible solutions so narrow that we didn’t think we could do justice to any particular group,” he said.

GreenBike uses Social Bicycles, the same type of bicycles Portland’s system will use. Social Bicycles doesn’t offer any adaptive bicycles — highlighting a problem for cities who want the option to purchase them.

B-Cycle is the only national bike share equipment vendor to offer a non-standard bicycle for city fleets. Their tricycle has been used in several cities since it was introduced in 2013. One of them is Boulder, Colorado. Boulder B-Cycle Director James Waddell told us he considered having one in their fleet but it didn’t work out. “They were double the price, and the one we borrowed from Denver B-cycle to try proved to be slightly dangerous for even able bodied people to ride!”

Overall it seems like the issue of making bike share systems accessible to people who can’t ride a standard two-wheeled bicycle, is a new issue that deserves more attention.

Is there even a demand for adaptive bikes?

Adam Amundsen runs Different Spokes, a shop in Portland that specializes in adaptive bikes. “People with disabilities don’t always advocate for themselves if they feel like it’ll be a major hassle or expense,” he said today in an interview. Sort of like bike parking or bike lanes, the demand only shows up once the infrastructure is available. Amundsen said if different types of bikes were available, they’d definitely get ridden. He added that Portland is known for being an inclusive place where “people can be their true person in public” and that one of the greatest things about biking is that – with the right type of bike – nearly anyone can do it.

To prove it, Amundsen is helping put on an Adaptive Bike Clinic this Sunday in partnership with the City of Portland’s Parks Bureau, Adaptive Sports NW, Shriner’s Hospital, Adventures Without Limits and other organizations.

As for how to make Biketown more accessible to people with disabilities, the bikes that will be at Sunday’s clinic are examples of ones that could potentially be integrated into the system. The City of Portland Parks Bureau has had a senior cycling program for years that uses tricycles. Along with local experts like Amundsen, Portland has other adaptive bike resources like Adaptive Sports Northwest and the popular Bike First! program run by the Northwest Down Syndrome Association.

This isn’t the first time the City of Portland has faced a learning curve when it comes to making new types of mobility options accessible to its disabled citizens. Making sure Uber vehicles would accomodate wheelchair users was a big win in the tense negotiations between City Hall and the aggressive ride-hailing service.

PBOT has about six weeks before the launch of bike share and Council Candidate Eudaly wants to see them do something about it. “I urge PBOT and the City of Portland to do the right thing. Show our disability community just how creative, inventive, and inclusive we can be, and avoid any potential lawsuits down the line.”

— Jonathan Maus, (503) 706-8804 – jonathan@bikeportland.org

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The post Is Biketown bike share for all? Or only the able-bodied? appeared first on BikePortland.org.

Linn County DA won’t prosecute driver who admitted checking his phone before deadly hit-and-run crash

Linn County DA won’t prosecute driver who admitted checking his phone before deadly hit-and-run crash

“The evidence shows that (the driver) diverted his attention away from the road in the moments immediately preceding the crash… he noticed something on his phone, which was on the seat next to him. He then looked down, and it was in this moment that the crash occurred.”
— Alex Olenick, Linn County Deputy DA

A case from Corvallis should send a shiver down the spine of anyone who uses our roads.

As reported today by the Gazette Times, the Linn County District Attorney’s Office has decided to not file charges against the driver who hit and killed 34-year-old Shiloh Sundstrom while he was walking on the side of a road east of Corvallis on the night of November 22nd. The auto user admitted to drinking and looking down at his phone prior to the crash. Despite these facts, the Deputy DA Alex Olenick said the evidence wasn’t enough to prove the driver acted with criminal negligence.

We’ve covered this legal situation numerous times and are aware of the existing limitations in Oregon law around traffic crashes. The threshold to prove intentional and reckless behavior by the driver of a car in situations like this is very high and often — even when it’s clear that a person’s behavior was dangerous and led to the crash — DA’s feel they must decline to prosecute.

What makes this case stand out however, is the statement Olenick made in his report. Here’s the relevant excerpt from Olenick’s memo (taken from Gazette Times with my emphasis):

Olenick noted in the report that there was no evidence to support that the driver acted intentionally, so the prosecutor focused his analysis on whether there was sufficient evidence that the driver acted recklessly or with criminal negligence in causing the crash.

“The evidence shows that (the driver) diverted his attention away from the road in the moments immediately preceding the crash,” Olenick wrote in the report. “(The driver) told police that he noticed something on his phone, which was on the seat next to him. He then looked down, and it was in this moment that the crash occurred.”





Olenick wrote that the question was whether the act of looking at the phone, and away from the road, constituted conduct that was criminally negligent, which is defined as a “gross deviation from the standard of care that a reasonable person would observe in the same situation.”

“This presents a difficult question on which reasonable minds may differ,” he wrote. “My analysis is whether simply looking away from the road at his phone is any different from looking in one’s blind spot, looking at a map, grabbing a cheeseburger, or turning momentarily for any other reason where the practical effect of the behavior is to deviate one’s attention from the road…

“I cannot conclude that (the driver) acted recklessly or with criminal negligence when he struck and killed Mr. Sundstrom with his vehicle.”

19261799-mmmain

Scene of the collision.
(Photo: Oregon State Police)

It’s worth noting that the auto user also admitted to drinking prior to the crash but by the time authorities were contacted it was too late for a breath test.

Legal constraints are one thing; but it’s outrageous for a DA to casually dismiss distracted driving in this context (where alcohol had been consumed and a man was killed as a result). Earlier this month a bill pushed by the Multnomah County DA’s office tried to make it easier to prosecute someone whose careless driving led to serious injury; but the bill died after trucking and automobile lobbyists convinced lawmakers that it was unfair to motor vehicle users.

This isn’t a legal issue or an enforcement issue, this is a cultural issue.

When we drive a car we are operating a deadly weapon. Until people respect it as such and adjust their behaviors accordingly, and until our justice and legal systems follow suit, these unavoidable accidents senseless and preventable tragedies will continue.

— Jonathan Maus, (503) 706-8804 – jonathan@bikeportland.org

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The post Linn County DA won’t prosecute driver who admitted checking his phone before deadly hit-and-run crash appeared first on BikePortland.org.

Woman sues for over $670,000 after collision caused serious injuries

Woman sues for over $670,000 after collision caused serious injuries

lawsuitlead

via The Oregonian

Cindy Lewellen, a 45-year old Portland resident who’s well-known in the local riding scene, filed a lawsuit this week against two people that she believes are liable for a collision that caused her serious injuries back in November.

It happened on NW St. Helens Road near that notorious intersection of Kittridge and Yeon (where the new Forest Park entrance is slated to go).

According to the lawsuit Lewellen was riding south in the bike lane. As she approached a driveway that led to United Rentals, a person driving in the adjacent lane had stopped for someone who wanted to turn left into the driveway. Here’s what happened next (according to the lawsuit, emphasis mine):

As defendant Juan Carlos Garcia was in the middle turn lane, defendant Jeffrey Lovelady [the person traveling in the same direction as Lewellen] indicated with his hands that defendant Juan Carols Garcia could make his turn in front of the motor vehicle defendant Jeffrey Lovelady was driving. Defendant Juan Carlos Garcia made the left turn directly in front of plaintiffs path of travel in the bicycle lane, causing a collision.

Lewellen is suing Garcia for making the turn and she’s suing Lovelady for encouraging him to do so.

This is a situation were a dreaded courtesy ended in with serious consequences. Lewellen was going 26 mph and was very badly injured in the collision. The lawsuit says she sustained a, “pelvic fracture, scapular fracture, rib fractures, sacral fracture, coccyx fracture, lung contusions, cardiac and pulmonary arrest, abrasions, contusions, and soft tissue injuries.”

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This case caught my attention for a several reasons.

First, the way The Oregonian treated it was very telling and unfortunate. Check out their headline:

oliveheadline

I’m not sure if it was intentional or not, but by referring to the person in the car as “well-intentioned” The Oregonian (or OregonLive, their website managers) pretty much guarantees an avalanche of mean comments (there are over 1,200 at this point) toward the person who filed the lawsuit. Especially when it’s a “cyclist.”

This is also the exact scenario that we published an article about last September. That article, written by lawyer Ray Thomas (who also happens to be Lewellen’s lawyer and a BikePortland advertiser) shared how being nice could make you liable in a collision.

Here’s what Thomas wrote:

“…when a driver waves another driver through stopped traffic — there can be disastrous consequences.

…the waver is assuming responsibility for conditions being safe to make the left turn.

Before one attempts to wave someone through they should always do a shoulder check for walkers, bikers and other overtaking traffic to make sure that they’re not about to create a wreck for others road users.

Every time we wave someone through or across a lane when the law grants no right-of-way to the recipient of the ‘favor’ the possibility of a collision greatly increases.”

There’s also some legal precedent for finding the waver liable in a traffic collision (as reported by The Oregonian).

The other thing that stands out about this case for me is the speed Lewellen was traveling prior to the collision. 26 mph is much faster than usual for a person to travel on a bicycle in those conditions. People who don’t ride a bicycle themselves, or who aren’t familiar with bicycle traffic in general, would have a difficult time judging the trajectory of Lewellen’s path.

It’s a very interesting case and I’ll be curious how it turns out.

Read the lawsuit here (PDF)


The post Woman sues for over $670,000 after collision caused serious injuries appeared first on BikePortland.org.

Man wins in court three years after police, insurance company blamed him for collision

Man wins in court three years after police, insurance company blamed him for collision

Still from KGW-TV video taken at the scene in 2012.

A Portland man who was blamed for a collision on a notorious section of North Broadway three years ago has been absolved in court.

Three years ago 33-year old Karl Zickrick was riding down North Broadway on his way to work. As he approached Wheeler he noticed a large SUV encroaching into the bike lane in front of him as it prepared to turn right. To avoid being right-hooked, Zickrick moved to the left out of the bike lane to go around the SUV. However, just as he made that move the driver of the SUV, 62-year-old Michael McLerren, slammed on his brakes and Zickrick flew into the back window. The impact shattered the window and left Zickrick with severe facial injuries and a broken jaw. (Two months after this collision, former Mayor Sam Adams decided to prohibit all right turns onto Wheeler.)

Adding insult to injury, the Portland Police Bureau blamed Zickrick for the collision. The day the crash occurred the PPB said this in an official statement (emphases mine):

The cyclist, 30-year-old Karl Thomas Zickrick, apparently swerved into the back of the Expedition, shattering the back window…

Although a traffic crash investigation was conducted, no citations will be issued as the driver of the SUV was properly yielding to the cyclist.

According to the PPB, Zickrick, the bicycle rider, was following too closely and failed to yield the right-of-way to McLerren.

The PPB’s finding led McLerren’s insurance company (Farmers Insurance) to lay 100% of the blame on Zickrick, thus refusing to pay for his damaged bike, lost wages, or medical bills.

Thankfully, Zickrick decided to fight the case in court. And he won.

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Zickrick hired Ray Thomas of Swanson, Thomas Coon & Newton to try his case. Thomas and his associate Charley Gee wrapped up the three-day trial yesterday at the Multnomah County Courthouse.

“It feels great. It’s been a weight on me for the last three years.”
— Karl Zickrick

“This case shows that insurance companies cannot treat commuters on bicycles like second class road users,” Thomas wrote to us in an email, “It is a shame that Karl had to go through a trial to receive any damages.”

Gee tells us that at the trail, lawyers for Farmers Insurance claimed Zickrick was riding too fast for conditions. That allegation came, “Despite riding under the speed limit on a dry day with very light traffic,” Gee said. They also said Zickrick was at fault because he left the bike lane.

Here’s more from Gee about how they won the case:

“Ray Thomas and I took this case in front of a conservative Multnomah County jury and they found that the SUV driver was 100% at fault for causing the collision. The driver, besides driving his large SUV onto the bicycle lane immediately in front of the bicyclist, also failed to wear the glasses he was required to wear to legally drive, failed to do a shoulder check when crossing lanes or merging, and failed to check his rear-view mirror.”

The jury awarded Zickrick $41,231 in economic damages and an additional $30,000 in non-economic damages.

It’s fitting that this case was heard just a block from yesterday’s protests and rallies. It’s a reminder, Gee says, that, “This fight is in all levels of government, city, county and state.”

In an interview today Zickrick told us he feels “great” about the ruling. “It’s been a weight on me for the last three years.” Zickrick said initially he just wanted to move on, but Thomas convinced him to take it to trial.

Beyond his injuries, Zickrick said being blamed and piled-on in the media was the hardest thing to deal with. “I suffered some bad injuries but the thing that resonated the most was all the stuff I read about it.” Zickrick also learned that not every police officer knows bike laws. He said the police investigator he spoke with while in the emergency room admitted to him that he didn’t know the laws about bike lanes and right-of-way. “He talked to me on the phone as if I should have yielded to the SUV, like a car would have to do.”

The best part of his court experience, Zickrick says, is how the case changed how jurors perceive news coverage of bicycle collisions. It turns out that a lot of the jurors had seen coverage of the incident on the news and accepted the “facts” and blame as it was presented. But after hearing the facts of the case, Zickrick says, “It totally changed their trust and perception of the media on these kinds of events. At first, a lot of them just took the bias of the newspapers and TV stations, so it was cool to hear them say that. That was exactly what I had hoped would come out of the situation.”


The post Man wins in court three years after police, insurance company blamed him for collision appeared first on BikePortland.org.

Man wins in court three years after police, insurance company blamed him for collision

Man wins in court three years after police, insurance company blamed him for collision

Still from KGW-TV video taken at the scene in 2012.

A Portland man who was blamed for a collision on a notorious section of North Broadway three years ago has been absolved in court.

Three years ago 33-year old Karl Zickrick was riding down North Broadway on his way to work. As he approached Wheeler he noticed a large SUV encroaching into the bike lane in front of him as it prepared to turn right. To avoid being right-hooked, Zickrick moved to the left out of the bike lane to go around the SUV. However, just as he made that move the driver of the SUV, 62-year-old Michael McLerren, slammed on his brakes and Zickrick flew into the back window. The impact shattered the window and left Zickrick with severe facial injuries and a broken jaw. (Two months after this collision, former Mayor Sam Adams decided to prohibit all right turns onto Wheeler.)

Adding insult to injury, the Portland Police Bureau blamed Zickrick for the collision. The day the crash occurred the PPB said this in an official statement (emphases mine):

The cyclist, 30-year-old Karl Thomas Zickrick, apparently swerved into the back of the Expedition, shattering the back window…

Although a traffic crash investigation was conducted, no citations will be issued as the driver of the SUV was properly yielding to the cyclist.

According to the PPB, Zickrick, the bicycle rider, was following too closely and failed to yield the right-of-way to McLerren.

The PPB’s finding led McLerren’s insurance company (Farmers Insurance) to lay 100% of the blame on Zickrick, thus refusing to pay for his damaged bike, lost wages, or medical bills.

Thankfully, Zickrick decided to fight the case in court. And he won.

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Zickrick hired Ray Thomas of Swanson, Thomas Coon & Newton to try his case. Thomas and his associate Charley Gee wrapped up the three-day trial yesterday at the Multnomah County Courthouse.

“It feels great. It’s been a weight on me for the last three years.”
— Karl Zickrick

“This case shows that insurance companies cannot treat commuters on bicycles like second class road users,” Thomas wrote to us in an email, “It is a shame that Karl had to go through a trial to receive any damages.”

Gee tells us that at the trial, lawyers for Farmers Insurance claimed Zickrick was riding too fast for conditions. That allegation came, “Despite riding under the speed limit on a dry day with very light traffic,” Gee said. They also said Zickrick was at fault because he left the bike lane.

Here’s more from Gee about how they won the case:

“Ray Thomas and I took this case in front of a conservative Multnomah County jury and they found that the SUV driver was 100% at fault for causing the collision. The driver, besides driving his large SUV onto the bicycle lane immediately in front of the bicyclist, also failed to wear the glasses he was required to wear to legally drive, failed to do a shoulder check when crossing lanes or merging, and failed to check his rear-view mirror.”

The jury awarded Zickrick $41,231 in economic damages and an additional $30,000 in non-economic damages.

It’s fitting that this case was heard just a block from yesterday’s protests and rallies. It’s a reminder, Gee says, that, “This fight is in all levels of government, city, county and state.”

In an interview today Zickrick told us he feels “great” about the ruling. “It’s been a weight on me for the last three years.” Zickrick said initially he just wanted to move on, but Thomas convinced him to take it to trial.

Beyond his injuries, Zickrick said being blamed and piled-on in the media was the hardest thing to deal with. “I suffered some bad injuries but the thing that resonated the most was all the stuff I read about it.” Zickrick also learned that not every police officer knows bike laws. He said the police investigator he spoke with while in the emergency room admitted to him that he didn’t know the laws about bike lanes and right-of-way. “He talked to me on the phone as if I should have yielded to the SUV, like a car would have to do.”

The best part of his court experience, Zickrick says, is how the case changed how jurors perceive news coverage of bicycle collisions. It turns out that a lot of the jurors had seen coverage of the incident on the news and accepted the “facts” and blame as it was presented. But after hearing the facts of the case, Zickrick says, “It totally changed their trust and perception of the media on these kinds of events. At first, a lot of them just took the bias of the newspapers and TV stations, so it was cool to hear them say that. That was exactly what I had hoped would come out of the situation.”


The post Man wins in court three years after police, insurance company blamed him for collision appeared first on BikePortland.org.

DIY prosecution of dangerous vehicle operators: A guide from Ray Thomas

DIY prosecution of dangerous vehicle operators: A guide from Ray Thomas

Fighting for fixed gears in court

Take ’em to court.
(Photo J. Maus/BikePortland)

It’s been over nine years now since we first shared the concept of “citizen initiated citations” here on BikePortland. At that time it was a little-known statute. Today, people are a bit more aware of it; but it’s still not a process that many people have gone through.

Unfortunately however, it’s still needed. As the number of people who operate vehicles illegally shows no signs of letting up and enforcement resources remain abysmal, it’s often the only option for justice. With an unusually high number of collisions and other incidents reported lately, we’ve decided to publish this article from Ray Thomas, the Portland-based lawyer and expert on bicycling issues who’s been at the forefront of citizen prosecution for nearly a decade.

(Note: Thomas uses “drivers” in his article, but his advice can be used by any road user regardless of how they get around.) — Jonathan Maus

Citizen Prosecution of Dangerous Drivers: How You Can Do It for Yourself

Some drivers drive so dangerously that some action must be taken to protect others. It is usually the case that a bad driver will offend again-and-again. When a driver uses a motor vehicle to harass or intimidate, or drives in a way that will be a danger to others, the victim is left with a tough choice: ignore it and move on, or follow-up and go through the process to pursue prosecution.

The first step is to use a mental checklist to ensure you can later identify the driver, the vehicle, and the license plate number.

If we let dangerous episodes slide then the person who is most vulnerable, like a solo tourist unfamiliar with the area, or someone with a medical condition, may well be the next victim. If there are no witnesses there is little likelihood a hit-and-run driver will ever be apprehended and punished. While it may be a hassle to pursue a dangerous driver, if you are able to obtain the license plate number, and identify the car and driver, then you have sufficient information to consider doing something more than just letting it go.

The first step is to use a mental checklist to ensure you can later identify the driver, the vehicle, and the license plate number. Repeating it over and over to yourself as a little sing-song, writing it in the dirt on the side of the road, typing it into your cellphone, or asking a passerby to let you use a pen and paper are all possibilities.

The bottom line is this: You need to obtain and retain the basic information about your suspect.

Law Enforcement Assistance; If Help Is Available Use It

When a driver commits a dangerous traffic offense that results in an injury or amounts to harassment it is always important to call the police and ask that an investigation be conducted and that the person be charged for a crime or traffic violation. When the police respond and pursue the case then the system is working as it should and justice is usually served.

However, many times the police decide they are too busy or the situation is not clear enough for them to get involved. This does not mean the driver is any less guilty of engaging in a dangerous driving practice, only that the police do not feel they can push the case.

In some instances it may be best just to let the situation resolve itself with inaction (for instance, if a police officer agrees to talk to the dangerous driver about their driving but declines to cite them for some reason).

However, sometimes the evidence of a dangerous violation of the law is clear and the driver will likely go on to harass others if they are allowed to escape punishment. In these situations it is possible to pursue the driver in court through Oregon’s Citizen Prosecution Statute (ORS 153.058). The Citizen Prosecution Statute allows regular citizens to initiate an action on a traffic ticket, to subpoena witnesses and present evidence at a trial in traffic court. If the driver is convicted, then the conviction is a moving violation just like what would be received if a police officer had initiated the case.

We Can Do It Ourselves

Oregon law allows a citizen to initiate traffic violation prosecutions in state court, and police help is ordered to be provided. I repeat, police assistance is required by the Oregon statute. But remember, the Oregon statute of limitations for violations is only six months; if the action is not filed within that time then the right to pursue a citizen violation is lost.

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After the initial report is taken by the police or the traffic court clerk and the citizen signs the Oregon Uniform Citation and Complaint (a.k.a. the ticket), the completed paperwork is served on the offending driver by the police or court staff. The citation summons them to traffic court to face the charges in a non-jury trial in front of a traffic judge. At the trial the complaining citizen gives an informal presentation of the case, the judge hears evidence and testimony, and if convicted the bad driver receives a citation and fine for a moving violation – the same as if the ticket were issued by a police officer.

The process, known as an “Initiation of Violation Proceeding” is important for vulnerable roadway users – we usually get banged up the most in a collision with a car. Too many of these wrecks occur because some drivers fail to yield or share the road. These drivers are among the most dangerous drivers and it is important that their driving records reflect it. In addition some insurance adjusters fail to give adequate recognition to legal rights of non-motorized roadway users. Whether ignorant of the law or just hostile to the other side, these insurance adjusters see a collision case and instinctively favor their insured motorist.

Since only the most serious collisions involve law enforcement accident investigation, the person who is hurt after a clear cut violation of the traffic law by a motorist is often disappointed to learn that the driver (who was clearly admitting fault at the scene) is now claiming the other person was at fault. On the other hand if the official court record contains a citation and traffic court conviction of the driver, then the insurance adjuster will be hard pressed to ignore the true liability picture.

Follow The Recipe

The Oregon statute is detailed and task specific. It includes every step of the process. Few law enforcement personnel are likely to have direct experience with the process when it is initiated by a citizen; but most officers are very familiar with the Oregon Uniform Citation and Complaint form.

The law requires that the officer facilitate the process. If you dead-end with the officer who first responds then try the department non-emergency and/or traffic phone number. In rural areas, state police and sheriff officers share jurisdiction. The gravity of any injury and seriousness of the motorist’s traffic violation will greatly influence the officer’s response. Filing these cases over petty traffic standoffs is going to stress a tax-poor law
enforcement and court system struggling to contain Oregon’s dangerous traffic offenders. But in collisions resulting in injury in which the driver commits a clear violation of the traffic laws, a traffic violation conviction is an option that may be important later to clarify the legal cause of the accident and to make a legal record of the driver’s law violation.

How to Initiate a Citizen Initiated Violation Prosecution

First, learn the lingo and read ORS 153.058 so you can explain it to someone who has never heard of it and may not believe such an unheard of procedure exists until you actually show them the law (my firm’s website, www.stc-law.com, contains a how-to guide as well as forms and accounts from other citizens who have successfully used the process.

Once you have done the background research, here are your next steps:

1. Contact the officer who investigated your incident or facilitated exchange of traffic accident information, any other officer involved in your accident, the shift sergeant for that unit on that shift at the time of your accident, the commander for the unit, the executive officer’s office (Chief, Sheriff, whatever), the District Attorney’s office in your county, the City Attorney office in your city, the traffic department clerk in your local courthouse, or just about any staffer willing to speak with you about it in the courthouse or police station, and show them the statute and this article. If they don’t know about the process but are willing to ask someone about it, you will probably succeed in getting your case started if you are willing to allow the process to lumber up to speed.

Remember, you only have six months after the date of the incident to being these proceedings.

2. Once you get a law enforcement officer willing to start your violation proceeding then work through the process with them. They are supposed to create and send a summary of a complaint (which you may be required to swear to and sign), to the clerk’s office for issuance of a summons. The Oregon Uniform Traffic Citation and Complaint Form may be what most officers choose for issuance of the case. If an unhelpful person points out that ORS 153.058 says “A person other than an enforcement officer ‘may’ commence a violation proceeding…” so as to defeat your effort you must point out that the statute does not allow any discretion by the officer; the case must be commenced once the citizen’s complaint is lodged. You are the one with the discretion to do it or not, not the police or the court staff.

Further, the court has no discretion in issuing the summons as ORS 153.058 clearly states “the court ‘shall’ issue a summons to be delivered…”. There is some discretion provided to the court to amend or dismiss a complaint, but issuance of properly presented complaints should not be opposed.

3. Ask the officer who issued your case to help you find out about how to present your case. In traffic court you will be in the position usually occupied by the officer who wrote the ticket. Identification of the driver and presentation of evidence must be handled by you and your witnesses. The police or courts will help you issue subpoenas to other witnesses in advance of court. If you do not feel like you will be able to present your case then ask for help from the police officer or a friend.

Again, if you convince the judge at the trial that the defendant violated the law then the conviction that results will be like any other moving violation. If you need more help our office may be able to help, depending on the facts of your case.

Good luck! And if you’ve been through this process, please share your experiences and tips below.

— Ray Thomas – rthomas@stc-law.com

(Disclaimer: Swanson, Thomas, Coon & Newton law firm is a BikePortland advertiser and this post is part of an ongoing paid partnership.)


The post DIY prosecution of dangerous vehicle operators: A guide from Ray Thomas appeared first on BikePortland.org.

Noted lawyer Ray Thomas opposes bill that would mandate rear bike lights

Noted lawyer Ray Thomas opposes bill that would mandate rear bike lights

ray

Ray Thomas.
(Photo J. Maus/BikePortland)

When Oregon House Representative John Davis proposed making reflective clothing mandatory while bicycling, many people understandably scoffed at the idea. Thankfully, he too apparently realized the absurdity of government intervention into apparel choices and quickly gutted his bill and stuffed it with something else.

Davis’ clothing idea quickly morphed into a bill (HB 3255) that would mandate rear lights on all bicycles (current law calls for only a rear reflector). That seemed like a good idea to me at first glance; but after hearing Portland-based lawyer and bike law expert Ray Thomas‘ opposition to it, I’ve changed my mind.

Thomas called me yesterday to say he was actively working to stop the bill. He has several significant concerns about how the new equipment requirement would impact bicycle riders in Oregon.

Thomas has sent an email to the six members of the Senate Committee on Business and Transportation where the bill currently sits while it awaits a hearing.

Here are the salient points of Thomas’ argument (as taken from his email):

This means that every person and child riding a bike bought from their local bike shop or Fred Meyer store would be in violation of the law if they rode the bike at dusk in their neighborhood without having bought and installed a rear red light, even though every new bicycle purchased in the state of Oregon is already required by federal law to have 8 reflectors installed on it, including 3 reflectors (red to rear, yellow on each pedal) that are activated by the approaching headlights of an overtaking motor vehicle. If these Oregonians are hit by a careless driver HB 3255 would provide a full legal defense to the driver even though the riders had more than adequate rear reflectors already required by Oregon and federal law.

HB 3255 is a bad idea because it heightens Oregon’s requirements of bicycle riders such that it makes all bikes illegal to ride that are presently in a legal state of trim with a white light to the front. Even the safety conscious and conservative Uniform Vehicle Code only requires a red reflector, which is also already Oregon law. ALL bikes when purchased are required by federal law from the CPSC to have an 8 reflector system that includes both rear red reflectors and rear facing pedal reflectors and spoke reflectors.

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And what HB 3255 would do is make it even more difficult to comply with Oregon vehicle law for those least likely to know about it or able to afford the modifications the law would require for every Oregon bicycle in order for it to be legally operated.

rearlight

And how will the new law be used? To heap comparative negligence or fault onto a bicycle rider when they get run down by an overtaking motorist who was failing to give them the existing legal minimum passing distance? Who will pay for a statewide TV media buy to inform Oregonians that their bicycles are illegal without rear red lights? How could the fiscal have a big zero on it in the legislature? Did anyone tell legislators that the cost of responsibly informing every Oregonian who rides a bike is going to be in the many thousands of dollars? What about all the ODOT Oregon Driver Manuals and Oregon Bicyclist Manuals that are in classrooms and school libraries that would now be wrong because they tell people that it is legal to ride with a rear red reflector like the one that is already on the rear of their bike?

What is being confused here is the difference between what is a preferred safe riding practice (rear red lights at night) and the legal minimum necessary to ride lawfully at night. Safety advocates uniformly suggest that bikes have rear red lights at best, but at least a rear red reflector. But a preferred safe riding practice should not be transformed into a legal requirement any more than that it should be a state law that only cars with side passenger air bags can be legally operated on Oregon roads.

In his email, Thomas also made the point that if this law passed, many people would discard their existing rear reflectors. Then, if their light stopped working for some reason (batteries or malfunction), they would be left with no visibility aids at all.

When the man who wrote the book on Oregon bicycle law (literally) and has helped craft many existing ones comes out this strongly against a bill, we think it’s worth taking seriously.

HB 3255 has already passed the House by a vote of 44-14. There is no committee hearing scheduled yet (might be worth noting that the House committee it breezed through was vice-chaired by Rep. Davis). We’ll keep you posted.


The post Noted lawyer Ray Thomas opposes bill that would mandate rear bike lights appeared first on BikePortland.org.

Lawsuit stemming from crash during mountain bike race is withdrawn

Lawsuit stemming from crash during mountain bike race is withdrawn

“With this decision, the future of mountain bike racing in state of Oregon has a somewhat brighter outlook.”
— Park Chambers, owner of Fat Tire Farm

A lawsuit many feared would have an ominous ripple-effect on mountain bike race promotion in the state of Oregon has been withdrawn.

As we shared earlier this month, Lisa Belair-Sullivan filed a lawsuit against a race promoter and sponsor after she crashed and injured herself on a log that had fallen across a trail. Belair-Sullivan was warming up for the Dog River Super D mountain bike race in May. Her lawsuit contended that event promoter Petr Kakes of Hurricane Racing and Park Chambers of Fat Tire Farm (a shop who was the title sponsor of the event) created a safety hazard that she was unable to avoid.

On January 9th, we confirmed with Belair-Sullivan that she withdrew the case. While she has yet to make an official public statement, Park Chambers issued one on January 23rd. We’ve pasted the statement below in its entirety:

Petr (Hurricane Racing) and I (Park-Fat Tire Farm) would like to thank the cycling community as a whole for coming together on this issue.

Fat Tire Farm (FTF) and Hurricane Racing (HR) have learned that the lawsuit filed against them at the Multnomah County Court has been withdrawn by the plaintiff. With this decision, the future of mountain bike racing in state of Oregon has a somewhat brighter outlook. FTF and HR are looking forward to the upcoming season and will soon announce future plans to continue to support competitive riding.

No one likes to see accidents happening during events. Mountain bikers, race organizers and promoters work together diligently to avoid such situations. However, all of us who ride bikes competitively have fallen before and we know crashes are part of the activity that we love and chose as participants. Unfortunately, gravity supported riding involves falls as part of the sport.

Let’s recognize, for the future of competitive mountain biking events, that there are inherent risks involved. Our hope is that each participant makes the right personal choice and takes appropriate responsibility in exercising judgment during events or while mountain biking. Personal responsibility while riding is paramount to the sport, trail access and the continued well being of competitive mountain biking for the racing community as a whole.

Park Chambers

Fat Tire Farm
21st Ave Bicycles
Hood River Bicycles
2714 NW Thurman St
Portland, Or 97210

CORRECTION: The original version of this story said the lawsuit was “dismissed.” It was actually withdrawn. Sorry for the mistake.

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